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Terms
of Use
Euphoria Intranet
Euphoria Smoothies & Nutritional Supplements, Ltd. (referred to in these Terms of Use in the
third-person plural, as “we” “us”, or “our”), has developed a password controlled, restricted
access Intranet that allows our licensees and selected manufacturers to download approved local
advertising materials and to communicate with us and each other, referred to as
www.euphoriaintranet.com; and other url’s used to access Euphoria
Smoothies Intranet System. We call all of these facilities (both existing and future) the “Euphoria Intranet” or the “Portal”.
Following are the terms and conditions of use (the “Terms of Use”) of the Euphoria
Smoothies Intranet, which will take effect on August 1, 2004. Please read them carefully.
You confirm that you are eligible to access the Euphoria Smoothies Intranet and that you agree to observe and
be bound by all these Terms of Use.
Introduction
Because the Euphoria Intranet will continually evolve and because we may change,
supplement, or delete any of its functions, we reserve the right to modify these Terms of Use in
the same manner we modify, amend or supplement our Operations Manual. These Terms of Use
constitute a part of the Operations Manual.
The Euphoria Intranet is provided “As-Is” and “As Available”. We assume no
responsibility for the timeliness, deletion, mis-delivery, or failure to store any of your
communications or settings.
To use the Euphoria Intranet, you must be able to access the World Wide Web, and
you must pay any Internet access fees associated with your access. You must also pay for and
provide all equipment and software necessary to connect to the World Wide Web, including a
computer and modem or other access device and/or software.
Passwords and Security
Typically, your User ID maybe your first and last name or any other ID assigned by system administrator. You will be assigned a Password. From time to time, we may require you to change
your Password. Because anyone who uses your User ID and Password gains access to our
confidential information, you must take care to maintain the confidentiality of your Password.
Neither you nor your employees may use any other person’s User ID and Password to access the
Euphoria Smoothies Intranet.
You should memorize your User ID and Password. If you need to write them down, do not
record your User ID at the same place you record your Password. You are responsible for
maintaining the confidentiality of your Password, and you are responsible for all activities that
occur under your User ID and Password.
You agree (a) to notify our System Administrator immediately of any unauthorized use of your User ID or Password, or any other breach of security that comes to your attention, and (b)
to log out of your Euphoria Smoothies Intranet account at the end of each session.
We cannot and will not be liable for any loss or damage arising from your failure to comply
with these requirements stated in this Section 2.
Privacy and Data Collection
We will record your User ID when we issue it to you, and your Password when you choose it.
We may record each instance that your User ID and password are used to access the Euphoria
Smoothies Intranet. We may also record the time and duration of each session of your User ID’s
use of the Euphoria Smoothies Intranet. We may also record when and the number of instances that
you access certain information on the Euphoria Smoothies Intranet, such as when you open an
update to the Operations Manual or the number of instances and how often you access the
Operations Manual. In addition, your first and last name will be transmitted with each message
sent under your User ID
Confidentiality of Certain Information
Portions of the information available on the Euphoria Smoothies Intranet constitute our
confidential and proprietary information. The confidential information may include information
or matters of a technical, non-technical, financial, or business nature, such as: information
about our operations, future plans, and methods of doing business; lists of licensees; and other
data not generally available to the public. Except as authorized in writing by one of our
officers, you may not directly or indirectly publish, disclose, or communicate to any person,
firm, or corporation, or use to our detriment, any of the confidential information for as long as
the information is considered by us to be confidential
Transfer of Account
You may not transfer your user account (or the account of your manager) to anyone without our
prior written consent.
Conduct
As a condition of your continuing use of the Euphoria Intranet, you promise that
you will not use the Euphoria Intranet for any purpose that is unlawful or prohibited
by these Terms of Use. We provide the Euphoria Intranet to our licensees and a limited
number of our approved suppliers only for exchanges of information and other uses directly
related to the Euphoria Smoothies system. You may use the Euphoria Smoothies Intranet only for
purposes related to the operation of your franchise and not for personal or unrelated business
use. Any unauthorized use of the Euphoria Intranet is expressly prohibited, and we
reserve the right to delete inappropriate material and to suspend the account of any person who
uses the Euphoria Intranet for an unauthorized purpose.
You should understand that all messages, data, text, photographs, graphics, video and other
materials or information transmitted via the Euphoria Intranet (except information that
we post), whether posted for general viewing or transmitted privately (“User Content”), are the
sole responsibility of the person from which an item of User Content originated. If you upload,
post, e-mail, or otherwise transmit any User Content, you are responsible for its compliance with
these Terms of Use. We do not screen, edit, or control User Content, and we do not accept
responsibility for its truthfulness, accuracy, or suitability. Under no circumstances will we be
liable in any way for any User Content, including errors or omissions in any User Content, or for
any loss or damage of any kind incurred as a result of the use of any User Content posted,
e-mailed, or otherwise transmitted via the Euphoria Intranet.
You may not use the Euphoria Intranet to:
1. upload, post, e-mail, or otherwise transmit any User Content that is unlawful, harmful,
threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of
another’s privacy, hateful, or racially, ethnically, or otherwise offensive;
2. Impersonate any person or entity, including falsely stating or otherwise misrepresenting
your affiliation with a person or entity;
3. Disguise the authorship or origin of any User Content you transmit;
4. Upload, post, e-mail, or otherwise transmit any User Content that you do not have a right to
transmit under any law or under contractual or fiduciary relationships (such as inside
information, proprietary information, and confidential information);
5. Upload, post, e-mail, or otherwise transmit any User Content that infringes any patent,
trademark, trade secret, copyright, or other proprietary rights of any person;
6. Upload, post, e-mail, or otherwise transmit any unsolicited or unauthorized advertising,
promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form
of solicitation;
7. Upload, post, e-mail, or otherwise transmit any material that contains software viruses or
any other computer code, files, or programs designed to interrupt, destroy, or limit the
functionality of any computer software or hardware or telecommunications equipment;
8. Disrupt the normal flow of dialogue, cause a screen to “scroll” faster than normal, or
otherwise act in a manner that negatively affects other users’ ability to engage in orderly
exchanges;
9. Interfere with or disrupt servers or networks connected to the Euphoria Smoothies Intranet;
10. Intentionally or unintentionally violate any applicable local, state, or national law;
11. “Stalk” or otherwise harass another; or
12. Collect or store personal data about other users.
We reserve the right, in our sole discretion, to block or remove any objectionable User
Content that you transmit available via the Euphoria Smoothies Intranet. Without limiting the
breadth of our rights, you are advised that we have the right to remove any User Content that
violates these Terms of Use or your License Agreement, or that is otherwise objectionable (in our
determination).
We store and preserve User Content in accordance with our policies (which we may change
from time to time) and may disclose User Content if required by law or in the good faith belief
that disclosure is reasonably necessary (a) to comply with legal process, (b) to enforce these
Terms of Use, (c) to respond to claims that any User Content violates the rights of
third-parties, or (d) to protect the rights, property, and personal safety of Euphoria Smoothies
and its employees, licensees, and suppliers.
We may transmit and store your User Content over various networks, computer servers, and
other technological means, and we may modify your User Content to conform and adapt it to
technical requirements of connecting networks or devices.
We will immediately suspend or terminate the rights of any User ID that we believe, in our
sole discretion, is being used to disseminate “spam” or other unsolicited bulk e-mail. In
addition, because damages are difficult to quantify, you agree to pay us liquidated damages of $5
for each piece of “spam” or unsolicited bulk e-mail transmitted under or otherwise associated
with your User ID.
License to Republish User Content
You grant us a royalty-free, perpetual, irrevocable, non-exclusive, fully assignable,
worldwide right and license to use, reproduce, modify, adapt, publish, translate, create
derivative works from, distribute, perform, and display all or any part of the User Content that
you transmit over the Euphoria Smoothies Intranet and/or to incorporate that User Content with
and into other works in any form, media, or technology now known or later developed.
Indemnity
You indemnify and agree to hold us, and our subsidiaries, affiliates, officers, agents, and
employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any
third party with respect to or arising out of User Content you submit, post to, or transmit
through the Euphoria Smoothies Intranet, your use of the Euphoria Smoothies Intranet, your
violation of these Terms of Use, or your violation of any rights of another.
Use and Storage
We may establish general practices and limits concerning use of the Euphoria Smoothies
Intranet, including the maximum number of days that e-mail messages, message board postings, or
other uploaded User Content will be retained on or by the Euphoria Smoothies Intranet, the
maximum number of e-mail messages that may be sent from or received by an account, the maximum
size of any e-mail message that may be sent from or received by an account, the maximum disk
space that will be allotted on our servers on your behalf, and the maximum number of times (and
the maximum duration for which) you may access the Euphoria Smoothies Intranet in a given period.
We disclaim any responsibility or liability for the deletion or failure to store any messages
and other communications or other User Content maintained on or transmitted by the Euphoria
Smoothies Intranet. We have the right to change these general practices and limits at any time,
in our sole discretion, with or without notice.
Modifications to Euphoria Smoothies Intranet
We reserve the right at any time and from time to time to modify or discontinue,
temporarily or permanently, the Euphoria Smoothies Intranet (or any of its features), with or
without notice. You agree that we will not be liable to you or to any third party for any
modification, suspension, or discontinuance of the Euphoria Smoothies Intranet.
Termination
We may suspend your password, your e-mail account, or other use of the Euphoria Smoothies
Intranet, and remove and discard any of your User Content if you violate these Terms of Use. Any
violation or breach of these Terms of Use by you or your employees will be deemed a breach of
your Euphoria Smoothies License Agreement. In addition to any other rights or remedies we may
have, if you repeatedly breach these Terms of Use, we may terminate your password, e-mail
account, or other use of the Euphoria Smoothies Intranet. We will not be liable to you or any
third-party for any termination or suspension of your access to the Euphoria Smoothies Intranet.
Links and Advertising
The Euphoria Smoothies Intranet may provide, or third parties (e.g., other licensees) may
provide, links to other World Wide Web sites or resources. We are not responsible for the
availability of external sites or resources, and we neither endorse nor assume any responsibility
for any content, advertising, products, or other materials on or available from those sites or
resources. We will not be responsible or liable, directly or indirectly, for any damage or loss
caused or alleged to be caused by or in connection with use of or reliance on any content, goods,
or services available on or through any other site or resource.
Your business dealings with, or participation in promotions of, advertisers found on or
through the Euphoria Smoothies Intranet, including payment and delivery of related goods or
services, and any other terms, conditions, warranties, or representations associated with those
dealings, are solely between you and the advertiser. We will not be responsible or liable for
any loss or damage of any kind you incur as the result of any dealings or as the result of the
presence of advertisers on the Euphoria Smoothies Intranet.
We may link the Euphoria Smoothies Intranet to the websites of third parties, including,
other electronic service providers, affiliates, and other providers of goods and services.
We may place legal notices, disclaimers, our corporate logos and slogans, advertisements,
endorsements, trademarks, and other identifying information on the Euphoria Smoothies Intranet,
all of which we may modify, expand, or eliminate at our option. All consideration (monetary and
non‑monetary) received by us on account of the placement or sale of advertisements, endorsements,
and sponsorships on the Euphoria Smoothies Intranet will belong only to us.
Intellectual Property Rights
We grant you a personal, non-transferable and non-exclusive right and license to use the
object code of the Software (defined below) on your
computer(s). You promise not to copy,
modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to
discover any source code, or to sell, assign, sublicense, grant a security interest in, or
otherwise transfer any right in the Software, either directly or through your employees or
independent contractors. You agree not to modify the Software in any manner or form, or to use
modified versions of the Software for any purpose, including (without limitation) that of
obtaining unauthorized access to the Euphoria Smoothies Intranet. You agree not to access the
Euphoria Smoothies Intranet by any means other than the interface that we provide for use in
accessing the Euphoria Smoothies Intranet.
Euphoria Smoothies is the owner of, and will retain all right, title and interest in and to
the Software (subject to any licenses for the same with third parties) all Owner Content (as
defined below) prepared for, or used on, the Euphoria Smoothies Intranet, and all intellectual
property rights in or to any of them.
“Owner Content” means all text, images, sounds, files, videos, designs, animations,
layouts, color schemes, trade dress, concepts, methods, techniques, processes, and data used in
connection with, displayed on, or collected from or through the Euphoria Smoothies Intranet that
we post or provide.
“Software” means computer programs and computer code (e.g., HTML, Java) used for, with, or
on the Euphoria Smoothies Intranet, excluding any software programs owned by third parties.
Disclaimer of Warranties
1. Your use of the Euphoria Smoothies Intranet is at your sole risk. The Euphoria Smoothies
Intranet is provided on an “as is” and “as available” basis. We expressly disclaim all
warranties of any kind, whether express or implied, including, but not limited to the implied
warranties of merchantability, fitness for a particular purpose, and non-infringement.
2. We make no warranty that (i) the Euphoria Smoothies Intranet will be uninterrupted, timely,
secure, or error-free, (ii) the results that may be obtained from the use of the Euphoria
Smoothies Intranet will be accurate or reliable, (iii) the quality of any products, services,
information, or other material you purchase or obtain through the Euphoria Smoothies Intranet
will meet your expectations, and (iv) any errors in the software will be corrected.
Limitation of Liability
You expressly understand and agree that neither we nor our affiliates, contractors,
suppliers, or licensors will be liable for any direct, indirect, incidental, special,
consequential, or exemplary damages, including damages for loss of profits, goodwill, use, data,
or other intangible losses (even if we have been advised of the possibility of the particular
type of damages), resulting from: (i) your use of or inability to use the Euphoria Smoothies
Intranet; (ii) the cost of procurement of substitute goods and services resulting from any goods,
data, information, or services purchased or obtained or messages received or transactions entered
into through or from the Euphoria Smoothies Intranet; (iii) unauthorized access to or alteration
of your transmissions, data, or other User Content; (iv) statements or conduct of any third party
on the Euphoria Smoothies Intranet; or (v) any other matter relating to the Euphoria Smoothies
Intranet.
Notices
Notices to you or us may be made by any manner permitted in your Euphoria Smoothies License
Agreement. In addition, the Euphoria Smoothies Intranet may also provide notices of changes to
these Terms of Use or other matters by displaying notices or links to notices to you generally on
the Euphoria Smoothies Intranet.
General
These Terms of Use constitute the entire agreement between you and us relating to your use of the
Euphoria Smoothies Intranet and govern your use of the Euphoria Smoothies
Intranet. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party
software.
Governing Law and Jurisdiction. Access to the Intranet, and the terms of this Agreement, are
governed exclusively by the laws of the Province of Ontario (except that any Ontario conflict of
laws provisions shall not apply). Any legal action or proceeding relating to your or any other
persons you authorize or permit to log in to or otherwise use the Intranet shall be instituted
only in a state or federal court having general jurisdiction in North Bay, Ontario. You and
Euphoria Smoothies agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any
such legal action or proceeding.
Cooperation with Investigations
We will cooperate with appropriate law enforcement agencies and other parties involved in
investigating claims of illegal or inappropriate activity. You agree to assist us and any such
law enforcement agencies or other parties in any investigation.
Licensing Agreement
Your use of the Intranet is subject to the conditions of this TOU and is also subject to the
terms and conditions in your (or, as applicable, your
employer’s) licensing agreement.
Violations
Please report any violations of these Terms of Use to our System Administrator.
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"Who is the happiest of men? He who values the merits
of others, and
in their pleasure takes joy, even as though t'were his own."
~ Goethe
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