REFERS TO: MAINSTAY, INC. MY25 RESOURCES SUBSCRIPTION AGREEMENT; SUBSCRIPTION CONFIRMATION & ACTIVATION FORM; MY25 FLEX NEWSLETTER SUBSCRIPTION SIGN UP; MY25 BULLSEYE TEXT MESSAGING SUBSCRIPTION SIGN UP; electronic sign up on the my25flex page of the my25.com web site; and MAINSTAY MEDIA PARTNERSHIP SUBSCRIPTION AGREEMENT
This Mainstay, Inc. My25 Resources Subscription Addendum (“Addendum”) provides additional terms and conditions relating to the Mainstay, Inc. My25 Resources Subscription Agreement; Subscription Confirmation & Activation Form; My25 Flex Newsletter Subscription Sign Up; My25 Bullseye Text Messaging Subscription Sign Up; electronic sign up on the my25flex page of the my25.com web site; and Mainstay Media Partnership Subscription Agreement which shall be binding on Subscriber and Mainstay and which are hereby incorporated into the Mainstay My25 Resources Subscription Agreement (“Agreement”); Subscription Confirmation & Activation Form ("Form"); My25 Flex Newsletter Subscription Sign Up ("Sign Up"); My25 Bullseye Text Messaging Subscription Sign Up ("Sign Up"); electronic sign up on the my25flex page of the my25.com web site ("Sign Up"); and Mainstay Media Partnership Subscription Agreement ("Agreement") between Mainstay and Subscriber.
1. Approvals, Consents and Waivers. Each party shall submit request for approvals, consents, and waivers to the other party in writing (email is satisfactory as long as there is confirmation of receipt) in a timely manner. No approval, consent, or waiver under the Agreement, Form or Sign Up shall be enforceable unless set forth in writing signed by an authorized representative of the granting party. A waiver of a default of any term of the Agreement, Form or Sign Up shall not be construed as a waiver of any succeeding default of that term or as a waiver of the term itself. A party’s performance after the other party’s default shall not be construed as a waiver of that default. No approval, consent, or waiver shall be deemed to have been given by implication and neither party shall be liable for delays in responding to, failures to respond to, or denials of those requests.
2. Copyright. Mainstay and its third party licensors and developers hold exclusive ownership of Mainstay Property, My25 Resources and My25 Network, and all intellectual property rights embodied therein, including copyrights and valuable trade secrets incorporated in the My25 Properties, Resources and Network design and methodology. Mainstay Property, My25 Resources and My25 Network are protected by United States and international copyright laws and international treaty provisions. Any Agreement, Form or Sign Up does not grant you any ownership or intellectual property rights in Mainstay Property, My25 Resources or My25 Network. Upon expiration of the Term or termination of your Subscription, you will not have the right to continue using Mainstay Property, My25 Resources or My25 Network and will promptly remove all copies of Mainstay Property, My25 Resources or My25 Network from your systems.
3. Discontinuation. Mainstay may terminate Agreement, Form or Sign Up upon 30 days notice to you in the event Mainstay no longer provides Mainstay Property, My25 Resources or My25 Network. Mainstay may provide a comparable replacement, in which case Mainstay may refund any prepaid but unused fees to you on a pro-rata basis.
4. Export Restrictions. You agree that you will not permit use or or export, directly or indirectly, re-export, divert or transfer Mainstay Property, My25 Resources or My25 Network in violation of any applicable export control law or regulation, including without limitation, the U.S. Export Administration Regulations ("Export Controls").
5. Non-Exclusive Use. Mainstay furnishes products and services to you under Agreement, Form or Sign-Up on a non-exclusive basis. Mainstay may directly or indirectly furnish the same or similar products and services to other parties doing business within or outside the vertical, horizontal, or geographic markets in which you do business.
6. Proprietary Code. Subscriber is responsible for maintaining the confidentiality of any proprietary User or Activation Code related to Mainstay Property, My25 Resources or My25 Network, for all use, whether authorized or unauthorized. Subscriber must promptly notify Mainstay if there is suspicion of any breach of security, such as loss, theft, or unauthorized disclosure or irregular use of the Code.
7. Notices. All notices required or permitted under Agreement, Form or Sign Up shall be in writing (via email is satisfactory with confirmation of receipt) and shall be delivered by any method providing sufficient proof of delivery, except that any notice other than a notice of default or notice of termination may be delivered by facsimile transmission if the original document is also promptly delivered to the recipient. Any notice shall be deemed to have been given on the date of receipt. Notices to Mainstay shall be sent to 1001 Green Bay Road, #195, Winnetka, IL 60093 or email@example.com. Notices to Subscriber shall be sent to the address Mainstay has on record.
8. Severability. Each term of this Agreement, Form and Sign Up is severable. If a court, agency, or arbitrator having jurisdiction determines that any term is unenforceable under applicable law, that determination shall not affect the enforceability of the other terms of Agreement, Form or Sign Up.
10. Assignment. Neither party shall assign its rights or delegate its duties under this Agreement or Form without prior written consent of the other party, except that Mainstay may assign Agreement, Form or Sign Up to an affiliate or to its successors by merger or to the transferee of substantially all of its stock or assets. Any assignee or delegate shall be subject to the same obligations, restrictions, and limitations to which the assignor or delegator is subject, and no assignor or delegator shall be released from liability under the Agreement, Form or Sign Up by reason of any such assignment or delegation. Agreement, Form or Sign Up shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
11. DISCLAIMERS OF WARRANTIES.
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:
MAINSTAY PROPERTY, MY25 RESOURCES AND MY25 NETWORK AND THEIR CONTENT AND MATERIALS (INCLUDING, WITHOUT LIMITATION, ALL RECIPES AND COOKING METHODS AND HEALTH GUIDANCE) ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. MAINSTAY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR PERSON, TITLE, COMPATABILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT.
NEITHER MAINSTAY NOR ANY OF ITS AFFILIATES, LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT MAINSTAY PROPERTY, MY25 RESOURCES OR THE MY25 NETWORK OR ANY FUNCTION CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MY25 WEBSITE, MY25 CHOICE PINPOINT SOFTWARE, MY25 PORTAL AND MY25 EMAIL TRANSMISSION OR THE SERVERS THAT MAKE THE WEBSITE, PINPOINT SOFTWARE, PORTAL AND EMAILS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
NEITHER MAINSTAY NOR ANY OF ITS AFFILIATES, LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE CONTENT AND MATERIALS (INCLUDING, WITHOUT LIMITATION, ALL RECIPES AND COOKING METHODS AND HEALTH GUIDANCE) IN MAINSTAY PROPERTY, MY25 RESOURCES AND THE MY25 NETWORK IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, SAFETY, EFFECTIVNESS OR OTHERWISE.
12. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MAINSTAY AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MAINSTAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE MAINSTAY PROPERTY, MY25 RESOURCES AND THE MY25 NETWORK; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL (INCLUDING, WITHOUT LIMITATION, RECIPES AND COOKING METHODS AND HEALTH GUIDANCE) ON THE MY25 PORTAL OR ANY SOFTWARE, WEBSITE OR WEBSITES LINKED TO MAINSTAY, (C) THE PREPARATION OF ANY RECIPE OR USE OF ANY COOKING METHOD AND HEALTH GUIDANCE LINKED TO MAINSTAY; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR (F) ANY OTHER MATTER RELATING TO MAINSTAY PROPERTY, MY25 RESOURCES AND THE MY25 NETWORK. IN NO EVENT SHALL MAINSTAY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, OR OTHERWISE) EXCEED THE AMOUNT OF THE SUBSCRIPTION FEE PAID BY YOU DURING THE TERM.
IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.