EXERSHINEkids LLC TRAINING AND CONTENT ACCESS TERMS OF SERVICE 

 

The following Training, Certification, Membership and Content Access Terms of Service, together with any online registration, checkout, invoice, purchase order, organizational license agreement, statement of work, or other written purchase confirmation accepted by EXERSHINEkids LLC (each, an “Order”), and any additional exhibits, schedules, amendments, or addenda applicable thereto, combine to constitute an agreement (the “Agreement”) between EXERSHINEkids LLC, a Massachusetts limited liability company (“EXERSHINEkids”), and the individual or organization identified in the applicable Order (“Customer” or “you”).

By registering for, purchasing, accessing, or using EXERSHINEkids Training & Certification, membership, portal content, Program Materials, or licensed branding, Customer acknowledges and agrees to be bound by this Agreement.

THESE TERMS CONTAIN RESTRICTIONS ON THE USE, COPYING, MODIFICATION, AND DISTRIBUTION OF EXERSHINEKIDS TRAINING MATERIALS, PROGRAM MATERIALS, CURRICULUM, AND INTELLECTUAL PROPERTY. PLEASE REVIEW THEM CAREFULLY.

1. PURCHASES

You agree to purchase, and EXERSHINEkids agrees to provide, the Training & Certification, membership, portal access, Program Materials, licensing rights, and/or other products or services identified in the applicable Order, subject to the terms and conditions of this Agreement.

2. TERMS AND CONDITIONS OF TRAINING & CERTIFICATION

2.1 Registration and Eligibility.

Each individual participating in the EXERSHINEkids Training & Certification Program must be separately registered with EXERSHINEkids and must complete all required components of the Training & Certification Program.

EXERSHINEkids reserves the right to establish eligibility requirements for certification and to approve or decline participation by individuals based on professional role, qualifications, intended implementation setting, or other program requirements.

2.2 Completion Requirements.

Registration is not complete until all required registration information and applicable fees have been received. Certification will be issued only after the participant successfully completes all required components of the Training & Certification Program, including any required self-paced and live training components.

2.3 Training Attendance and Recordings.

EXERSHINEkids training sessions, recordings, presentations, demonstrations, and related Training Materials may not be recorded, copied, reproduced, transmitted, shared, or made available to individuals who are not registered participants without the prior written consent of EXERSHINEkids.

Each participant attending or accessing a Training & Certification Program must be individually registered.

2.4 Training Materials.

All training manuals, presentations, videos, handouts, demonstrations, documentation, and other materials provided in connection with Training & Certification (“Training Materials”) are proprietary and confidential property of EXERSHINEkids.

Training Materials may be used only by the individually registered participant for purposes authorized under this Agreement and may not be shared with unregistered individuals or organizations without prior written authorization from EXERSHINEkids.

2.5 Certification and Initial Membership.

Unless otherwise specified in the applicable Order, the initial EXERSHINEkids Training & Certification fee for the primary participant includes twelve (12) months of EXERSHINEkids membership and access to the applicable online portal and Program Materials.

Additional individuals within the same organization may be trained and certified at the then-current additional participant rate. Portal access and implementation rights for additional participants are subject to the organization’s active membership and the terms of this Agreement.

3. TERMS AND CONDITIONS OF MEMBERSHIP, PROGRAM MATERIALS AND LICENSED USE

3.1 Program Materials and Membership License.

Subject to Customer’s continued compliance with this Agreement and payment of all applicable fees, EXERSHINEkids grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the applicable membership term to access and use the EXERSHINEkids Program Materials made available through Customer’s membership solely for authorized implementation of EXERSHINEkids programming and related professional purposes within Customer’s approved practice, school, clinic, organization, or other authorized setting.

“Program Materials” include, without limitation, protocols, curricula, exercise content, videos, visual materials, implementation resources, documentation tools, marketing materials, parent resources, templates, logos, branded assets, downloadable resources, and other content made available through the EXERSHINEkids portal or membership.

3.2 Authorized Users and Training Requirements.

Access to Program Materials is limited to individuals authorized by EXERSHINEkids under the applicable Order or organizational agreement (“Authorized Users”).

Any individual who leads, facilitates, or is responsible for implementing an EXERSHINEkids class or program must have successfully completed the applicable EXERSHINEkids Training & Certification Program.

Clinical supervision, consultation, or oversight by an EXERSHINEkids-certified occupational therapist or other certified professional does not replace the requirement for each individual implementing EXERSHINEkids programming to complete Training & Certification.

Login credentials and portal access may not be shared with unauthorized individuals.

3.3 Delivery and Portal Access.

EXERSHINEkids will generally make Program Materials available through its online portal or other electronic means designated by EXERSHINEkids. Customer is responsible for providing all hardware, software, internet connectivity, data storage, and other technology necessary to access and use the Program Materials.

Portal access remains available only during an active membership term unless otherwise expressly stated in writing by EXERSHINEkids.

3.4 Reservation of Rights and Ownership.

Except for the limited rights expressly granted under this Agreement, all right, title, and interest, including all copyright and trademark rights, in and to the EXERSHINEkids name, trademarks, logos, Training Materials, Program Materials, curricula, protocols, videos, methodologies, frameworks, designs, documentation, marketing resources, and any modifications, updates, replacements, or substitutes thereof will remain with EXERSHINEkids.

No ownership rights are transferred to Customer or any Authorized User under this Agreement.

3.5 Permitted Clinical and Implementation Adaptations.

Authorized Users may make reasonable clinical and implementation-level adaptations to EXERSHINEkids activities based on participant age, developmental level, sensory needs, physical abilities, safety considerations, group composition, available equipment, physical environment, and other individualized needs.

Such adaptations are an expected component of appropriate program implementation and do not constitute prohibited modification of the Program Materials, provided that the adaptations remain consistent with the fundamental EXERSHINEkids framework and are not used to create, market, publish, sell, or represent a separate or derivative curriculum or program.

3.6 Prohibited Uses.

Except as expressly authorized under this Agreement or in writing by EXERSHINEkids, Customer and Authorized Users may not:

(a) permit access to the EXERSHINEkids portal, Training Materials, or Program Materials by unauthorized individuals;

(b) share individual login credentials or password information with unauthorized individuals;

(c) publish, sell, license, sublicense, transfer, distribute, reproduce, or otherwise commercially exploit Training Materials or Program Materials;

(d) create, market, sell, distribute, or represent a separate or derivative curriculum or program based substantially upon EXERSHINEkids proprietary content, protocols, methodologies, or Program Materials;

(e) remove or alter EXERSHINEkids trademarks, copyright notices, branding, disclaimers, or other indicia of ownership;

(f) represent EXERSHINEkids Program Materials, protocols, frameworks, or substantially similar derivative content as having been independently created or owned by Customer or an Authorized User;

(g) upload or distribute Training Materials or Program Materials through an internal or external organizational curriculum repository, shared drive, learning management system, or other system in a manner that permits access by unauthorized users;

(h) make copies of Training Materials or Program Materials for distribution outside the scope authorized by this Agreement; or

(i) otherwise use EXERSHINEkids intellectual property outside the scope authorized by this Agreement.

3.7 EXERSHINEkids Name and Branding.

During an active membership term, Customer may use the EXERSHINEkids name, trademarks, logos, and approved marketing materials solely to identify and market authorized EXERSHINEkids programming.

All such use must comply with EXERSHINEkids branding guidelines and may not imply ownership of EXERSHINEkids intellectual property, an affiliation beyond that authorized under this Agreement, or authority greater than that expressly granted by EXERSHINEkids.

The right to use the EXERSHINEkids name, trademarks, logos, and licensed branding terminates upon expiration or termination of membership.

3.8 Organizational and Multi-Site Use.

For organizational Customers, the license granted under this Agreement extends only to the legal entity, locations, programs, and Authorized Users identified or otherwise approved under the applicable Order or organizational agreement.

Access and use do not automatically extend to parent companies, subsidiaries, affiliates, franchisees, independently operated locations, partner organizations, or other entities unless expressly authorized in writing by EXERSHINEkids.

4. FEES

4.1 Fees.

Customer will pay EXERSHINEkids all Training & Certification, additional participant, membership, renewal, portal access, private training, consultation, and other applicable fees identified in the applicable Order or organizational agreement.

Unless otherwise stated in writing, fees are payable in advance. Pricing may vary based on the number of participants, organizational scope, training format, or other agreed-upon factors.

4.2 Sales and Use Taxes.

Customer will be responsible for all applicable sales and use taxes, or similar taxes, associated with products or services purchased under this Agreement and will promptly pay EXERSHINEkids for such taxes upon EXERSHINEkids’ written invoice.

5. TERM, MEMBERSHIP RENEWAL AND TERMINATION

5.1 Term and Membership.

The term of this Agreement will commence upon Customer’s acceptance of the applicable Order and continue through the last day of the Training & Certification, membership, content access, license, or other services purchased under the Order, unless otherwise terminated in accordance with this Agreement.

Unless otherwise specified in the applicable Order, the initial Training & Certification purchase for the primary participant includes twelve (12) months of membership.

Continued access to and use of EXERSHINEkids Program Materials, portal content, licensed branding, protocols, marketing resources, and other membership benefits following the initial membership term requires renewal at the then-applicable membership rate.

Certification and membership are distinct. Completion of the EXERSHINEkids Training & Certification Program does not provide a perpetual license to operate, market, or represent programming as EXERSHINEkids following expiration or termination of membership.

5.2 Membership Renewal.

Following the initial membership term, Customer may continue membership at the renewal rate and billing frequency identified in the applicable Order or renewal notice.

EXERSHINEkids will provide notice of applicable renewal terms prior to the end of the initial membership period. Continued membership is required for uninterrupted portal access and continued licensed use of EXERSHINEkids Program Materials, protocols, name, logos, marketing resources, and other membership content.

Any automatic renewal or recurring billing will be subject to the terms disclosed to and accepted by Customer at the time Customer enrolls in the applicable recurring membership.

5.3 Termination for Breach.

Either party will have the right to terminate this Agreement if the other party has materially breached the Agreement if: (i) the terminating party provides written notice to the other party setting forth the facts and circumstances constituting the breach; and (ii) the party alleged to be in breach does not cure such breach within ten (10) business days following receipt of such notice.

If a breach, other than a breach for failure to make any payment due, is curable, but such cure cannot reasonably be made within ten (10) business days following receipt of such notice, the terminating party will not be entitled to terminate the Agreement if the party allegedly in breach, within such ten (10) day period, presents a schedule to cure the breach, commences curing such breach, and thereafter diligently executes the same to completion in accordance with the schedule.

5.4 Effect of Expiration or Termination.

Upon expiration or termination of Customer’s membership or this Agreement, as applicable:

(a) all fees due from Customer under this Agreement as of the date of termination will immediately be paid in full;

(b) Customer and its Authorized Users must cease accessing the EXERSHINEkids portal and Program Materials;

(c) Customer and its Authorized Users must cease using EXERSHINEkids protocols and membership content to operate or market an EXERSHINEkids program;

(d) all rights to use the EXERSHINEkids name, trademarks, logos, branded marketing materials, and other licensed intellectual property will terminate; and

(e) Customer will cease representing itself as an active EXERSHINEkids licensed program or member.

Notwithstanding the foregoing, an individual who has successfully completed Training & Certification may retain their certificate of completion and records reasonably necessary to document completed professional education. Retention of such records does not grant any continuing right to use EXERSHINEkids Program Materials, curriculum, protocols, portal content, or branding following expiration or termination of membership.

6. DISCLAIMERS AND LIMITATIONS OF LIABILITY

6.1 DISCLAIMER OF WARRANTIES.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROGRAM MATERIALS, TRAINING MATERIALS, AND ANY OTHER PRODUCTS OR SERVICES RELATED THERETO ARE PROVIDED AS-IS AND AS-AVAILABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXERSHINEKIDS DISCLAIMS ANY AND ALL WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER AND AUTHORIZED USERS ASSUME ALL RESPONSIBILITY FOR THEIR USE OF THE PROGRAM MATERIALS, AND EXERSHINEKIDS ASSUMES NO RESPONSIBILITY FOR SUCH USE.

6.2 EXCLUSION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY INCLUDING NEGLIGENCE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXERSHINEKIDS WILL HAVE NO LIABILITY TO CUSTOMER OR AUTHORIZED USERS ARISING OUT OF OR IN CONNECTION WITH THEIR USE OF THE TRAINING MATERIALS, PROGRAM MATERIALS, OR ONLINE PORTAL.

The Training Materials and Program Materials are provided as educational and program implementation resources for appropriately qualified and authorized professionals. They do not constitute occupational therapy, physical therapy, medical, psychological, or other individualized healthcare services and are not intended to diagnose, treat, or replace individualized assessment, professional judgment, or medical or healthcare advice.

Each Customer and Authorized User is responsible for implementing EXERSHINEkids programming within the scope of their own professional qualifications, licensure, employment requirements, applicable laws and regulations, and organizational policies.

Never disregard professional medical advice or delay seeking it because of information contained in EXERSHINEkids Training Materials or Program Materials.

6.3 LIMITATION OF LIABILITY.

EACH PARTY’S LIABILITY UNDER THIS AGREEMENT FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES ACTUALLY PAID TO EXERSHINEKIDS UNDER THIS AGREEMENT.

7. CONFIDENTIALITY

7.1 Definition.

“Proprietary or Confidential Information” will mean data or information regarding: (i) either party’s business operations which is not generally known to the public; (ii) either party’s proprietary curriculum, writings, videos, software or other electronic media, including, but not limited to, concepts, designs, documentation, reports, data, flow charts, know-how, and other trade secrets, whether or not patentable or copyrightable; and (iii) the terms of this Agreement.

7.2 Use and Protection.

Each party agrees that it has no interest in or right to use the Proprietary or Confidential Information of the other except in accordance with the terms of this Agreement.

The party receiving Proprietary or Confidential Information will: (i) maintain it in strict confidence and take all reasonable steps to prevent its disclosure to third parties, except to the extent necessary to carry out the purposes of this Agreement, in which case consent will be obtained from the other party and these confidentiality restrictions will be imposed on third parties to whom such disclosures are made; (ii) use at least the same degree of care as it uses in maintaining the secrecy of its own Proprietary or Confidential Information, but no less than a reasonable degree of care; and (iii) prevent the removal of any proprietary, confidential, or copyright notices placed on the Proprietary or Confidential Information.

Customer will ensure that Authorized Users with access to EXERSHINEkids Proprietary or Confidential Information are informed of and comply with the confidentiality and use restrictions applicable to such information.

7.3 Limitation.

Neither party will have any obligations concerning any Proprietary or Confidential Information of the other that is: (i) publicly known before or after disclosure other than through any wrongful act or omission attributable to the recipient, its employees, or representatives; (ii) known to the recipient at the time of disclosure; (iii) disclosed in good faith to the recipient by a third party having a lawful right to do so; or (iv) required to be disclosed by the receiving party by law or legal process, provided that the receiving party will promptly notify the disclosing party so that it may take steps to prevent or modify the terms of its disclosure.

8. MISCELLANEOUS

8.1 Independent Contractor.

EXERSHINEkids and Customer are and will remain independent contractors. The Agreement does not constitute a partnership. Neither party is a franchisee, agent, or legal representative of the other for any purpose, and neither party has the authority to act for, bind, or make commitments on behalf of the other.

8.2 Amendments in Writing.

No amendment, modification, or waiver of any provision of this Agreement will be effective unless set forth in a writing that refers to this Agreement and is executed by authorized representatives of each party.

No failure or delay by any party in exercising any right, power, or remedy will operate as a waiver of any such right, power, or remedy.

8.3 Force Majeure.

Neither party will be liable nor deemed to be in breach of its obligations hereunder for any delay or failure in performance under this Agreement or other interruption of service resulting, directly or indirectly, from acts of God, civil or military authority, act of war, accidents, electronic, computer or communications failures, natural disasters or catastrophes, strikes, other work stoppages, or any other cause beyond the reasonable control of the party affected thereby.

8.4 Notices.

Any notice to be given under this Agreement will be in writing, will be deemed given upon receipt, and will be delivered in person, by registered or certified mail, postage prepaid, return receipt requested, or by overnight delivery service with proof of delivery, and addressed to the applicable party at the address set forth in the applicable Order or organizational agreement.

8.5 Governing Law.

This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.

8.6 Entire Agreement; Order of Precedence; Severability.

This Agreement, together with all applicable Orders, organizational agreements, schedules, amendments, and attachments, constitutes the entire agreement of the parties concerning its subject matter and supersedes prior written or oral agreements concerning such subject matter.

In the event of a conflict between these Terms and an executed organizational agreement or Order, the executed organizational agreement or Order will control solely with respect to the specific pricing, organizational scope, Authorized Users, locations, implementation rights, or other terms expressly addressed therein. In all other respects, these Terms will control.

If any provision of this Agreement is held by a court or arbitration panel of competent jurisdiction to be unlawful or unenforceable, the remaining provisions of this Agreement will remain in full force and effect to the extent that the parties’ intent can lawfully be enforced.

8.7 Individual Certification; Organizational License.

EXERSHINEkids certification is issued to the individual who successfully completes the Training & Certification Program and may not be transferred to another individual.

Organizational membership and licensing rights belong to the Customer identified in the applicable Order and may not be transferred to another legal entity without prior written consent from EXERSHINEkids.

If a certified individual leaves an organization, that individual’s certification does not transfer to another employee, and the former organization may not provide that individual’s portal credentials or Training Materials to a replacement employee.

An individual’s certification status does not, by itself, grant that individual or a subsequent employer an independent license to access EXERSHINEkids Program Materials, use EXERSHINEkids branding, or operate or market an EXERSHINEkids program without an active applicable membership or organizational license.