This LICENSE AGREEMENT (this “Agreement”) is made as of November 30th, 2020 by and between Applied Mindfulness, Inc., a California corporation (the “Company/ Licensor”) and You (the “Customer/ Licensee”).
- The Company provides certain wellness content and services through its website, and wishes to make such content and services available to Customer.
- Customer wishes to obtain access to such content services
NOW THEREFORE, the parties hereby agree as follows:
- “Applied Mindfulness” means Applied Mindfulness, Inc. and/or any of its subsidiaries or affiliates as set out in the Order Form.
- “Restorative Practices Digital Visual Design Portfolio” means the content, product(s) and/or services offered through the Website, to include, without limitation, digital slide decks licensed by Company to Customer pursuant to this Agreement.
- “Authorized End User” means any person to whom the Customer is showing the Restorative Practices Digital Visual Design Portfolio by electronic means.
- “Content” means any information, text, graphics, photos or other materials appearing in the Restorative Practices Digital Visual Design Portfolio
- “Password” means, collectively, the user ID, default password assigned to a Customer.
- “Subscription Period” means the term of access to the Restorative Practices Digital Visual Design Portfolio, as set forth in the applicable Order Form.
- “Website” means the website www.restorativepractices.com.
- PURPOSE. Company has developed the Restorative Practices Digital Visual Design Portfolio to make available proprietary visual designs developed by Applied Mindfulness to Customers (the “Purpose”). Company makes the functionality of the Restorative Practices Digital Visual Design Portfolio available to its customers remotely by means of password-protected access to the Website.
- Consent You hereby certify that you are over the age of eighteen (18) or have the legal ability to consent to these Terms.
- Presentation of Human Content By purchasing, accessing, and/or using Content that contains representations of at least one human figure (“Human Content”), you are acknowledging that (a) the relevant scientific and clinical experts in polyvagal theory and trauma therapy explicitly discourage using subject matter like that contained in the Human Content in a clinical setting, (b) displaying or transmitting a representation of a human figure in various nervous system states (including social engagement, play, intimacy, fight response, flight response, freeze response, shutdown, appease, etc.) could elicit distress in a person who has experienced trauma, and (c) in order to responsibly display the Human Content to third parties, the displayer of the Human Content (Customer) should have the requisite professional training to be able to recognize the signs and symptoms of traumatic distress in a viewer of the Human Content and help a viewer who is experiencing those symptoms of traumatic distress to calm down. By purchasing, accessing, and/or using the Human Content, you agree and represent that you will not display the Human Content in a clinical setting.
- Acceptable Use You agree not to access or use the Content in an unlawful way or for an unlawful or illegitimate purpose or in any manner that contravenes these Terms, including in any manner that infringes or violates any of the intellectual property rights of others or the privacy or publicity rights of others. Your relationship with the provider of the Content is strictly that of an independent licensor and licensee. The Licensor is not involved in the any doctor-patient relationship and does not interfere, validate or control your treatment of your patients. You are always advised to exercise a high level of care and caution in the use of the Content as you would making any mental health or medical decision for yourself or your patients.
- LICENSE, INSTALLATION AND USE.
- License. Company hereby grants Customer a limited, revocable, nonexclusive license to use the Restorative Practices Digital Visual Design Portfolio, subject to the terms and conditions set forth herein. For purposes of the preceding sentence, “use” of the Restorative Practices Digital Visual Design Portfolio means access by a customer to the functionality of the Restorative Practices Digital Visual Design Portfolio by means of password protected access to the Website.
- Company grants Customer and its Authorized End Users the right to view the Restorative Practices Digital Visual Design Portfolio, including all content accessible therein, according to the terms of the applicable Order Form as follows:
- Licenses. The specific license term and any maximum number of Authorized End Users shall be as specified on the applicable Order Form.
- Internet & Systems Requirements. Continuous Internet access, connectivity, and certain minimum systems and technical requirements are required to access and use the Restorative Practices Digital Visual Design Portfolio, which are not provided by Company and are the sole responsibility of Customer and/or its Authorized End Users. Information regarding minimum systems and technical requirements for the Restorative Practices Digital Visual Design Portfolio may be obtained by Customer from the Website or Company’s customer support.
- TRANSFER OF LICENSE. Customer may not, and may not permit others to, directly or indirectly, sell, rent, lease, loan, timeshare or sublicense the Restorative Practices Digital Visual Design Portfolio or any portion thereof.
- LIMITATIONS ON USE. Customer agrees not to, and not to permit others to, directly or indirectly (a) reverse assemble, reverse compile, or otherwise reverse engineer or attempt to derive the source code of all or any part of the Restorative Practices Digital Visual Design Portfolio (b) copy, modify, translate, alter, change or collect information that can be used to create derivative works of all or any part of the Restorative Practices Digital Visual Design Portfolio, (c) download, copy or collect information that could be used to copy all or any part of the Restorative Practices Digital Visual Design Portfolio, or (d) access or use all or any part of the Restorative Practices Digital Visual Design Portfolio for any purpose other than for the Purpose, except as and only to the extent expressly permitted by applicable law, notwithstanding this limitation, or expressly authorized in writing by Company. Any such information supplied by Company, and any information obtained by Customer by any such expressly permitted decompilation may only be used by Customer for the purpose expressly authorized by Company, and may not be disclosed to any third party, or used to create any software that is substantially similar to the Restorative Practices Digital Visual Design Portfolio. If the applicable Order Form or invoice specifies a maximum number of Authorized End Users or concurrent users that may access the Restorative Practices Digital Visual Design Portfolio, Customer agrees not to exceed such maximum number without the prior written approval of Company. Customer agrees, upon request by Company at any time, to exchange its current version of the Restorative Practices Digital Visual Design Portfolio for an updated version and to discontinue use of the version that was replaced.
- OWNERSHIP OF INTELLECTUAL PROPERTY. Company reserves all rights in the Restorative Practices Digital Visual Design Portfolio and all content thereon or otherwise accessible therefrom not expressly granted to Customer in this Agreement. Customer acknowledges and agrees that Company or its third-party Licensors own all right, title and interest in and to the Restorative Practices Digital Visual Design Portfolio (including, without limitation, all software, code, interfaces, text, photographs, graphics, animation, applets, music, video and audio incorporated therein and any related user guides and documentation), the trademark APPLIED MINDFULNESS and other marks owned by Company and/or related to the Restorative Practices Digital Visual Design Portfolio, URLs that incorporate all or any portion of any Applied Mindfulness marks, and the trade dress, and look and feel of the Restorative Practices Learning Platform, all of which are covered by various protections including, without limitation, copyright, trademark, and trade secrecy law. If Customer suggests new features or functionality that Company, in its sole discretion, adopts for the Restorative Practices Digital Visual Design Portfolio, such new features or functionality will be the sole and exclusive property of Company and any and all claims of Customer as to the same are hereby waived and released. Company reserves the right, in its sole discretion and without incurring any liability to Customer, to update, improve, replace, modify or alter the specifications for and functionality of all or any part of the Restorative Practices Digital Visual Design Portfolio from time to time.
- SUPPORT. Company offers support to Customers of the Restorative Practices Digital Visual Design Portfolio in accordance with its published support policies. Hours of support may vary for certain products and territories. The hours of operation and means of accessing Company’s customer support are available at 844 REST PRA (737 8772) or email@example.com. Company reserves the right to make changes to these customer support provisions at any time and will post those changes on the support page.
- LIMITED WARRANTY, DISCLAIMERS, AND LIABILITY LIMITATIONS.
- Limited Warranty and Disclaimer. Company represents and warrants to Customer that:
- its platform, personnel, experience, and expertise are sufficient to perform the services as described in any executed Order Form;
- it will perform the services in a professional and workmanlike manner, conforming to industry standards and practices;
- it has no pre-existing obligations or commitments (and will not assume or otherwise undertake any obligations or commitments) that would be in conflict or inconsistent with, or that would hinder Company’s performance of its obligations under this Agreement.
- DISCLAIMER OF WARRANTIES. OTHER THAN AS STATED IN SECTION 8.1 ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY THE LAW, NEITHER COMPANY NOR ITS THIRD PARTY LICENSORS MAKE ANY OTHER WARRANTIES OR PROMISES, WHETHER EXPRESS OR IMPLIED, OR BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, ABOUT THE RESTORATIVE PRACTICES LEARNING PLATFORM, INCLUDING BUT NOT LIMITED TO THE SOFTWARE ASSOCIATED THEREWITH AND THE CONTENT ACCESSIBLE THEREON, OR ANY SERVICES PROVIDED HEREUNDER, AND PROVIDE THE SOFTWARE, CONTENT AND SUPPORT SERVICES (IF ANY) “AS-IS” WITH ALL FAULTS AND THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT OF SUCH SOFTWARE (IF ANY) SHALL BE WITH THE CUSTOMER. THERE IS NO REPRESENTATION OR WARRANTY HEREIN AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OR AGAINST INFRINGEMENT. COMPANY AND ITS THIRD PARTY LICENSORS DISCLAIM ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SOFTWARE, CONTENT, THIRD PARTY SOFTWARE AND ANY SERVICES PROVIDED HEREUNDER, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR THAT CUSTOMER’S USE OF THE SOFTWARE WILL BE UNINTERUPTED, VIRUS FREE, OR ERROR FREE. CUSTOMER ACKNOWLEDGES THAT NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES ARE MADE BY ANY THIRD PARTY LICENSORS HEREIN.
- Customer Assurance. Customer warrants to Company that it has all rights, licenses and permissions necessary to enter into this Agreement.
- Limitations of Liability. In no event will a party or Company’s third party Licensors or any other person or entity be liable to the other party for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages. If Customer could have avoided damages by taking reasonable care, neither Company nor its third party Licensors will be liable for such losses. In no event shall Company or its third party Licensors’ total liability for all actual direct damages, if any, whether arising in contract, tort, including negligence, or otherwise, exceed the cumulative payments actually received by Company from Customer pursuant to this Agreement. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, COMPANY'S, COMPANY’S LICENSORS' AND COMPANY’S AFFILIATES' LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
- TERMINATION AND SURVIVAL.
- This Agreement is effective until terminated. By accepting this Agreement Customer authorizes Company to immediately terminate Customer’s rights under this Agreement, including access to the Restorative Practices Digital Visual Design Portfolio, if Customer fails to comply with any terms of this Agreement, including the specific terms stated on the applicable Order Form. Restrictions imposed by Company for a breach of this Agreement may include, but are not restricted to: i) Terminating account access to the Restorative Practices Digital Visual Design Portfolio.
- Upon termination of this Agreement, Customer shall cease all use of the Restorative Practices Digital Visual Design Portfolio. For purposes of clarity and notwithstanding anything to the contrary, except in the event of Company’s termination of an order or the Agreement due to material breach by Customer, the term of any individual license acquired under this Agreement shall be as set forth in the applicable accepted Order Form, and the rights in such licenses shall not be transferred from the entity named as the receiving party in the applicable Order Form to any other entity.
- The provisions of Sections 7, 9, 10, 12, 17, 18, and any other obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect, but this shall not imply or create any continued right to use the Restorative Practices Digital Visual Design Portfolio after termination of this Agreement.
- FEES AND PAYMENTS. Customer agrees to pay Company the fees set forth on the Order Form for the Restorative Practices Digital Visual Design Portfolio. Company shall invoice Customer for the total amount stated on each Order Form at time of purchase. Payments due hereunder shall be made by Customer without any deduction, setoff or bank charges to Company at the banking institution in the United States designated by Company in U.S. dollars or on any other terms mutually agreed upon and set forth in an order form. All payments made by Customer are non-refundable. Overdue payments required to be paid by Customer pursuant to this Agreement (other than amounts that are the subject of a legitimate dispute) shall accrue interest at the lesser of one and one half percent (1.5%) per month or the maximum allowable interest under applicable law, from the due date until paid, and Customer shall pay Company’s costs of collection, including Company’s reasonable attorneys’ fees and court costs. The amounts due to Company as set forth in the applicable Order Form do not include, and Customer shall pay, any sales, use, property, value added or other taxes (including any amounts to be withheld for the purpose of paying the foregoing) relating to, resulting from or based on use of the Company Product. If Company is required to pay any of the foregoing taxes, then such taxes shall be billed to and promptly paid by Customer.
- GOVERNING LAW AND FORUM. This Agreement, and the legal relationship between the Company and Customer hereunder, will be governed in all respects, by and construed in accordance with the substantive laws in force in Santa Clara County in the State of California, USA, without reference to its laws relating to conflicts of law, and each party agrees that any action arising out of or related to this Agreement must be brought exclusively in a state or Federal court in California, and Customer waives any objection it has or may have in the future with respect to the foregoing.
- WAIVER. Failure to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of that term, covenant or condition or of any other term, covenant or condition of this Agreement. Any waiver or relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time.
- SEVERABILITY. All provisions of this Agreement apply to the maximum extent permitted by applicable law. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
- THIRD PARTY RIGHTS. Except as expressly set forth herein, nothing in this Agreement shall be construed as giving any person or entity, other than the parties hereto and their successors and permitted assigns, any right, remedy or claim under or in respect of this Agreement or any provision hereof.
- NOTICES. All notices, requests, or other communications hereunder shall be in writing, addressed to the parties at the addresses set forth in the Order Form and in the case of notice to Company addressed to the attention of the Legal Department. Notices mailed by registered or certified mail shall be conclusively deemed to have been received by the addressee on the fifth business day following the mailing of sending thereof. Notices sent by facsimile shall be conclusively deemed to have been received when the delivery confirmation is received. Notices sent by email shall be conclusively deemed to have been received when the email message is delivered, unless such delivery results in a message that such email is undeliverable. If either party wishes to alter the address to which communications to it are sent, it may do so by providing the new address, in writing, to the other party.
- Obligations. Each party agrees to hold Confidential Information in confidence and not use or disclose it to a third party for a period of three (3) years from the date of termination or expiration of this Agreement. The receiving party will protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of Confidential Information as the receiving party uses to protect its own confidential information of like nature. “Confidential Information” means the proprietary information exchanged between the parties, which is (i) marked “confidential” or “proprietary” at the time of disclosure by the disclosing party; or (ii) by its nature or content is reasonably distinguishable as confidential or proprietary to the receiving party, and includes, without limitation, information (tangible or intangible) regarding a party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information, and shall include the terms and conditions of this Agreement or of any Order Form and the pricing provisions thereof. The receiving party may disclose the Confidential Information to its employees, agents, financial advisers and independent contractors, only as necessary to fulfill the services and provided such parties have executed a written nondisclosure agreement substantially as protective of the Confidential Information as this Agreement, or as may be required under regulatory requirements.
- Exclusions. Confidential Information will not include information that (a) is made generally available in the public domain prior to time of disclosure; (b) is or becomes publicly available through no act or omission by the receiving party; (c) was already in the receiving party’s possession without restriction before receipt from the disclosing party and was not subject to a duty of confidentiality; (d) is rightfully disclosed to the receiving party by a third party without confidentiality restrictions; or (e) that the receiving party independently developed without use of or reference to Confidential Information. The receiving party may disclose the disclosing party’s Confidential Information as required by law or court order provided: (i) the receiving party reasonably notifies the disclosing party in writing of the requirement for disclosure, unless notice is prohibited by law; and (ii) discloses only that portion of the Confidential Information legally required.
- EXPORT. Customer agrees to comply with all relevant export laws and regulations of the United States. Customer agrees to comply with all applicable international and national laws that apply to the Restorative Practices Digital Visual Design Portfolio, including the U.S. Export Administration Regulations and Office of Foreign Assets Control Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
- COMPLETE AGREEMENT; ASSIGNMENT.
- Except as expressly provided herein, this Agreement, together with each applicable Order Form, constitutes the entire agreement between the parties with respect to the use of the Restorative Practices Learning Platform and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Agreement, or action, or delay, will be binding unless in writing and signed by Company.
- Company may assign this Agreement, in whole or in part, at any time with or without notice to Customer. This Agreement and rights hereunder may not be assigned, delegated or otherwise transferred by Customer without the express prior written consent of Company.
- COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile, or by email in portable document format (.pdf) and delivery of the signature page by such method will be deemed to have the same effect as if the original signature had been delivered to the other parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
Applied Mindfulness, Inc.
This Order Form documents the specific service terms to be provided by Applied Mindfulness, Inc. to Customer, as contemplated by the License Agreement (the “LA”) by and between Applied Mindfulness, Inc. and Customer.
All capitalized and other defined terms used herein without definition have the meanings given thereto in the LA. The terms and conditions of the LA are hereby incorporated by reference in this Order Form. If any terms of the LA conflict with the terms of this Order Form, the terms and conditions of the LA will control unless this Order Form expressly provides otherwise. This Order Form will not bind the parties unless and until accepted and signed.
Practitioner License: $199 for up to 100 Authorized End Users
Small Enterprise License: $999 for 100 to 1000 Authorized End Users
Mid-Sized Enterprise License: $1999 for 1000 to 10,000 Authorized End Users
Automatic Renewal of Service Term: Unless you cancel your subscription no later than thirty (30) days prior to the expiration date of the then current term, this Order Form will automatically renew for successive 1-year terms.
Each of the undersigned entities represents and warrants to the other that this Order Form has been duly authorized and executed and delivered by an authorized representative of such undersigned entity.