ExerSHINE Kids LLC TRAINING AND CONTENT ACCESS TERMS OF SERVICE
The following Training and Content Access Terms of Service, together with the executed purchase order referencing them (an “Order”), and any additional statements of work and other exhibits, schedules and addenda attached hereto or to an Order, combine to constitute an agreement (the “Agreement”) between ExerSHINE Kids LLC, a Massachusetts limited liability company (“ExerSHINE Kids”), and the customer identified in the Order (“Customer” or “you”). By executing the signature page to an Order, and in consideration of the mutual promises, intending to be legally bound, ExerSHINE Kids and Customer hereby agree as follows:
THESE TERMS CONTAIN RESTRICTIONS ON THE USE, COPYING AND DISTRIBUTION OF EXERSHINE KIDS’S TRAINING MATERIALS; PLEASE REVIEW THEM CAREFULLY.
- Purchases. You agree to purchase, and ExerSHINE Kids agrees to provide, the online training services described in the Order and online access to ExerSHINE Kids’s proprietary content and downloadable curriculum materials described in the Order.
- Terms and Conditions of Training Services
2.1 All of your attendees must be pre-registered for each scheduled, online training session. ExerSHINE Kids reserves the right, in its sole discretion, to refuse to train consultants who are not your employees. In the event of such decision, ExerSHINE Kids will notify you prior to the training session for which the consultant is trying to register.
2.2 Training registration is not confirmed until this registration form is completed and returned to ExerSHINE Kids.
2.3 ExerSHINE Kids training sessions may not be copied or transmitted to offsite attendees without prior written consent of ExerSHINE Kids. All attendees need to be registered for each training class.
2.4 ExerSHINE Kids’s training manuals and documentation that support the purchased training (“Training Materials”) are confidential and proprietary information, and property of ExerSHINE Kids. Training Materials are to be provided to your employees only and not consultants. You represent and warrant that you will not provide any Training Materials to consultants or any other individuals or organizations that are not direct employees of the Company without ExerSHINE Kids’s prior written consent.
2.5 ExerSHINE Kids provides Training Materials to registered attendees only, and access to the online portal for the initial bundle of Training Materials is granted to the clinician who will be running and implementing the program. If you request additional Training Materials or access to the curriculum for additional clinicians, you will be billed for the Training Materials at the applicable rates.
- Terms and Conditions of Access to Curriculum
3.1 License to Training Materials. Subject to the terms and conditions of this Agreement, ExerSHINE Kids hereby grants to you a non-exclusive, non-transferable right and license to an unlimited number of authorized users who are your employees, who are certified by ExerSHINE Kids and have agreed to the use and copying restrictions in this Agreement (“Users”) to use the Training Materials, and additional videos and other content designed for the first eight (8) weeks of post-training professional development (together with the Training Materials, the “Online Initial Curriculum”) solely for their own professional development. The Training Materials will be provided by email prior to the online training the lead clinician identified in the Order. The Online Initial Curriculum will be made available to Users through remote access to ExerSHINE Kids’s online portal solely in the manner set forth in this Agreement. The right of your Users to access the Online Initial Curriculum will continue indefinitely unless and until ExerSHINE Kids no longer makes the Online Initial Curriculum generally available to its customers. The right of each of your Users to use a single copy of the Online Initial Curriculum, solely for their own professional development and without the right of further distribution, shall be perpetual.
3.2 Additional Online Curriculum. Subject to the terms and conditions of this Agreement, if you order access to additional online materials that extend beyond the Initial Curriculum (such as additional 8-week lessons, videos, challenges, themes, etc.) (“Supplemental Curriculum Bundles”), ExerSHINE Kids hereby grants to you a non-exclusive, non-transferable right and license for the number of Users specified in the Order to use such Supplemental Curriculum Bundles during the term of the purchased access period (the “Term”). The Supplemental Curriculum Bundles will be made available to Users through remote access to ExerSHINE Kids’s online portal solely in the manner set forth in this Agreement. The right of your Users to access the Supplemental Curriculum Bundles will continue through the content access Term set forth in the applicable Order. The right of each of your Users to use a single copy of the Supplemental Curriculum Bundles, solely for their own professional development and without the right of further distribution, shall be perpetual. As used in this Agreement, “Curriculum” means both the Online Initial Curriculum (including the Training Materials) and any Supplemental Curriculum Bundles subscribed for in a separate Order.
3.3 Delivery. ExerSHINE Kids will make the Initial Online Curriculum and any Supplemental Curriculum Bundles available to you by remote access through the Internet. You will be responsible for providing all hardware, software, connectivity and data storage necessary to use them.
3.4 Reservation of Rights. Except as expressly granted in this Agreement, all right, title, and interest (including copyright and trademark rights) in the Curriculum, and any related materials, and any modifications, revisions, replacements or substitutes thereof, will remain with ExerSHINE Kids.
3.5 Prohibited Actions. Except as expressly provided in this Agreement, you will not, and will instruct your Users not to: (a) permit access to the Curriculum to any persons other than Users who have been issued an individual identification or password code by you; (b) modify, publish, license, sublicense, transfer, sell, distribute, reproduce, create derivative or collective works from, or in any way otherwise exploit the video components of the Curriculum, in whole or in part; (c)
modify, reproduce, create derivative or collective works from, or in any way otherwise revise the downloadable components of the Curriculum, or make copies of such downloadable components for anyone outside your organization, including consultants; (d) remove from the Curriculum any ExerSHINE Kids branding, copyright notices, disclaimers or other indicia of ownership or restrictions on use; (e) remove, modify or edit the substance of any information within the Curriculum; or (f) make any copy of the Curriculum for any purposes except internal use within your organization.
4.1 Fees. You will pay ExerSHINE Kids (a) the combined training and content access fee set forth in the Order for each online training course and accompanying eight (8) week content access period, payable in advance and (b) the content access fees for any Supplemental Curriculum Bundles you purchase through a separate Order.
4.2 Sales and Use Taxes. You will be responsible for all sales and use taxes (or similar taxes) on the Online Initial Curriculum and will promptly pay ExerSHINE Kids for such taxes upon ExerSHINE Kids’s written invoice to you for such taxes.
- Term and Termination
5.1 Term. The term of this Agreement will commence on the Effective Date and continue through the last day of the services or access you have purchased under the Order, unless otherwise terminated in accordance with this Agreement (the “Term”).
5.2 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 be reasonably made within ten (10) business days following receipt of such notice, the terminating party will not be entitled to terminate the License, 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.
5.3 Post Termination Obligations. Upon termination of this Agreement: (i) all fees due from you under this Agreement as of the date of termination will immediately be paid in full; and (ii) you and Users will no longer access, use or display the Online Initial Curriculum in any manner.
- Disclaimers and Limitations of Liability
6.1 DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE CURRICULUM AND ANY OTHER PRODUCTS OR SERVICES RELATED THERETO, ARE PROVIDED AS-IS AND AS-AVAILABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXERSHINE KIDS 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. YOU AND YOUR USERS ASSUME ALL RESPONSIBILITY FOR THEIR USE OF THE CURRICULUM, AND EXERSHINE KIDS 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, EXERSHINE KIDS WILL HAVE NO LIABILITY TO YOUR OR YOUR USERS ARISING OUT OF OR IN CONNECTION WITH USERS USE OF THE ONLINE CURRICULUM. THE TRAINING MANUALS AND ONLINE CURRICULUM ARE PRESENTED ONLY AS EDUCATIONAL TRAINING FOR LICENSED PRACTITIONERS – NOT OCCUPATIONAL THERAPY, MEDICAL THERAPY OR PSYCHOLOGICAL THERAPY. THEY ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO DIAGNOSE ANY MEDICAL OR HEALTH CONDITION, REPLACE THE ADVICE OF A LICENSED HEALTHCARE PROFESSIONAL, OR PROVIDE ANY MEDICAL ADVICE, OPINION, DIAGNOSIS OR TREATMENT. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ IN THE TRAINING MANUALS OR ONLINE CURRICULUM.
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 EXERSHINE KIDS UNDER THIS AGREEMENT.
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 the 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.
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 immediately notify the disclosing party so that it can take steps to prevent or modify the terms of its disclosure.
8.1 Independent Contractor. ExerSHINE Kids and you 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, or 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 as set forth above.
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; Severability. This Agreement, together with the schedules, amendments, and other attachments, contains a full and complete expression of the rights and obligations of the parties. If any provision of this Agreement conflicts with any schedule, amendment or attachment to this Agreement, this Agreement will control with respect to the subject matter of such schedule, amendment or attachment. This Agreement supersedes any and all other previous agreements, written or oral, made by the parties concerning its subject matter. If any provision of this Agreement is held by a court or arbitration panel of competent jurisdiction to be unlawful, the remaining provisions of this Agreement will remain in full force and effect to the extent that the parties' intent can be lawfully enforced.