TERMS AND CONDITIONS

 

  1. Representations and Warranties. Each party represents and warrants that it has the full right, power and authority to enter into and perform its obligations under this Agreement. Licensee further represents and warrants that it shall at all times comply with all applicable federal, national, state, provincial, local and other laws, rules, regulations and guidelines, and Licensee’s use of the Resources, in whole or in part, shall not violate any third party right. Except as set forth herein, there are no representations or warranties of any kind of nature made by Licensor or Licensee. The Resources, including the Documentary and Training Materials, content, and other material of any kind provided by Licensor are provided as is, without warranty of any kind, including but not limited to, any express or implied warranties of merchantability, fitness for a particular purpose, effort to achieve purpose, quality, accuracy, non-infringement, quiet enjoyment and title. Licensee agrees that any efforts by Licensor to modify its Resources or services shall not be deemed a waiver of these limitations, and that any provided warranties shall not be deemed to have failed of their essential purpose.
  2. Indemnity. Each party (the “Indemnitor”) will indemnify and hold the other party and its affiliates, permitted successors, licensees and sublicensees, and assigns, and each of their officers, representatives,  employees, and contractors (each and collectively, the “Indemnitee”), harmless from and against all claims (including those brought by third parties and those brought by the parties against each other), actions, liability, damages, costs and expenses, including reasonable outside attorneys’ fees (collectively, the “Claims”), arising from any breach by the other party of this Agreement. Licensee shall also indemnify and hold Licensor and its covered parties harmless from and against all Claims in connection with Licensee’s exercise of its rights hereunder, including Claims arising from or related to self-harm, injury, property damage, or death after viewing the Documentary and/or accessing the Training Materials. This obligation shall survive termination of this Agreement, though terminates with the applicable statute of limitations with any alleged Claim(s). Notwithstanding, in order to seek or receive indemnification hereunder in cases involving third-party Claims: (a) the Indemnitee must have promptly notified the Indemnitor of any Claim, of which it is aware, to which the indemnification relates; and (b) with regard to any Claim to which the Indemnitor itself is not a party, the Indemnitee must have afforded the Indemnitor the opportunity to undertake and conduct the defense and/or settlement of such with counsel of its choice.  
  3. Results Disclaimer; Party Roles and Results; Third Party Platforms. Without limiting the generality of the foregoing, the information and content provided in or through the Resources are provided for education and informational purposes only, and not designed as a treatment for any condition or ailment or a guarantee of any results. Licensor and its owners, representatives, employees, contractors, agents, and affiliates (collectively, “Licensor” for purposes of this Section), is not a medical doctor, psychologist, therapist or other licensed or registered medical or health care professional, and Licensor is not acting in any such capacity, and any advice or statements provided in connection with the Resources is not intended to replace the services or recommendations of a physician or other qualified health care practitioner. Licensee shall not provide any medical records, protected health information, or other confidential information of anyone to Licensor. Licensor may use third party websites and platforms to provide and administer any Resources, including but not limited to, Vimeo (collectively, the “Third Party Platforms”). By using the Third Party Platforms, Licensee and any authorized users hereby consent to such Third Party Platforms’ terms and conditions and privacy policies, which may be updated from time to time without notice.
  4. Force Majeure. Except with respect to payment obligations under this Agreement, (a) neither party shall be liable, nor deemed in breach of this Agreement, for its delay or failure to perform its obligations hereunder due to a Force Majeure Event; and (b) in addition to the foregoing, Licensor shall not be liable, nor considered in breach of this Agreement, for any delay or failure to perform Licensor’s obligations under this Agreement due to a Disability Event. Promptly following the Force Majeure Event or Disability Event, or the affected party’s knowledge of certain facts and reasonable determination that such event may prevent or delay its performance, but in any event no later than three (3) days thereafter, (i) the affected party shall notify the other in writing (e-mail deemed sufficient) of such event’s occurrence and a description of the facts and circumstances for non-performance, and (ii) the parties shall negotiate in good faith to reschedule the performance of the services, or if available and at Licensor’s election, substitution of services or deliverables. If applicable, the time for the affected party’s performance shall be extended by at least the period of such event, provided that if such period extends beyond two (2) weeks, either party may terminate this Agreement by written notice to the other party. For clarity, if this Agreement is terminated in accordance with this Section 4, Licensor shall be entitled to the entire Fee unless otherwise mutually agreed. "Force Majeure Event" shall mean a cause beyond either party's reasonable control, including, without limitation any act of God, public enemy or terrorist, military, civil, governmental, or regulatory authority; change in any law or regulation; fire, flood, earthquake, storm or other like event; civil unrest or commotion; pandemic or epidemic; disruption, outage, or failure of public utilities or common carriers; labor strike; and national or local emergencies. “Disability Event” shall mean any physical or mental illness, disability, or injury, even if the foregoing does not amount to total disability.
  5. RELEASE; WAIVER OF LIABILITY BY LICENSEE. To the fullest extent permitted by applicable law, Licensee, for and on behalf of itself, and its permitted successors, licensees and sublicensees, affiliates, assigns, and each of their officers, representatives, employees, and insurers (collectively, the “Releasors”), hereby expressly, absolutely, irrevocably and unconditionally covenants not to sue, and waives and releases, discharges Licensor and its owners, representatives, employees, contractors, licensees and sublicensees, agents, affiliates, and insurers (collectively, the “Licensor Releasees”) from any and all liabilities, obligations, expenses or bills, accidents, claims, demands, actions, suits, losses, damages, injuries (including death), ailments, health conditions, actions, causes of action, fines, penalties, settlements, judgments or expenses (including reasonable outside attorneys’ fees), whether in law or in equity, in tort or in contract, by statute, pursuant to case law or otherwise, arising out of, related in any way to or in connection with the services, Resources, or Licensee’s past, present and future participation in Licensor’s programs, whether resulting in whole or in part by the negligence of Licensor releasees (collectively, the “Losses”). The Releasors shall indemnify, defend, and hold the Licensor Releasees harmless in connection with any Losses. 
  6. Limitation of Liability. Licensee agrees that its exclusive remedy shall be an action at law for damages and in no event shall be entitled to injunctive or any other equitable relief. In no event shall Licensor be liable for any indirect, incidental, special, consequential damages, or damages for loss of profits, revenue or data, whether in contract or tort, even if foreseeable, foreseen, or known. Further, in no event shall Licensor’s liability to Licensee, arising out of or related to the Resources or this Agreement, exceed the Fees actually paid by Licensee hereunder. 
  7. Independent Contractor Relationship. Licensee’s relationship to the Licensor shall be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, joint venture, employer-employee or agency relationship between Licensee and Licensor. Neither party shall represent to any third party that any such relationship exists. 
  8. Confidentiality; Non-Disparagement. Licensee shall keep the terms of this Agreement and all non-public information relating to the Licensor or its affiliates, programs, and services, which is disclosed or discovered in connection with this Agreement strictly confidential and only use such information for the purposes of performing its obligations in accordance herein.  Licensee will not disclose such information to any third party unless compelled by law or with Licensor’s prior written consent. Excluding general, positive statements related to Licensee’s use and enjoyment of the Resources, Licensee agrees not to make any public statements or statements to the press or third parties in connection with this Agreement unless approved in writing by Licensor, including but not limited to, any disparaging, defamatory, or negative comments or remarks about Licensor. 
  9. Assignment. Licensee may not transfer or assign this Agreement without the written consent of Licensor. Any transfer or assignment in violation of this Section shall be null and void. Licensor may transfer or assign this Agreement, including its right to receive payments due hereunder to a debt collection agency as provided in Section 15. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives, successors and permitted assigns.
  10. Governing Law; Arbitration Agreement. This Agreement, including all matters of construction, validity, and performance, and all disputes arising out of or connected with the Agreement, the Resources or any contemplated uses of the Resources, and related transaction thereto (each a “Dispute,” collectively, the “Disputes”), shall, in all respects, be governed by and construed in accordance with the laws of the State of Massachusetts without regard to any principles of conflict of laws, except that the arbitration clause herein shall be governed by the Federal Arbitration Act. Any Dispute shall be settled under the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”). The place of arbitration shall be the AAA office nearest to Licensor’s location in Massachusetts. The language of the arbitration shall be English. The arbitrator shall be an attorney with experience in the field of entertainment and intellectual property law. All Disputes shall be arbitrated or litigated on an individual basis. Licensor and Licensee each irrevocably waives any right it may otherwise have to proceed on a class or collective basis. Further, Licensor and Licensee each irrevocably waives all right to trial by jury as well as any argument or claim of improper venue or forum non conveniens. The parties shall bear their own expenses, except that parties shall equally share the expenses of any arbitrator (except for the required non-refundable filing fees which shall be paid solely by the party asserting the Dispute). The prevailing party in any arbitration may seek from the arbitrator an award of the party’s reasonable outside attorneys’ fees and costs incurred. Judgment on any the award rendered by an arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding anything to the contrary herein, Licensee hereby irrevocably authorizes Licensor to refer any unpaid account balances to a debt collection agency for collection and resolution by any lawful means without further liability to Licensee.
  11. Miscellaneous. All notices, approvals, and other communications hereunder shall be in writing and sent to the parties’ contact provided on the signature page, as may be updated from time to time in accordance herein. Notices shall be effective upon receipt; email notice shall be effective upon actual receipt or the receiving party’s acknowledgment or response to such. Headings in this Agreement are inserted for reference and convenience only and are not a part of this Agreement. Any modification or waiver of this Agreement will be effective only if it is in writing signed or expressly acknowledged and accepted by the parties. If any provision of the Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable. This Agreement contains the parties’ entire understanding and supersedes any prior written or oral agreement between the parties regarding the subject matter of this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. Those provisions, which by their nature shall survive or which require a party to act after termination, shall so survive termination for whatever reason, including but not limited to confidentiality and indemnification. This Agreement may be executed in any number of counterparts, including facsimile counterparts (including by .pdf, email, or by secure digital signature services such as DocuSign), each of which shall be deemed an original but all of which together shall constitute one and the same Agreement.
  12. Professional Use. Upon signing and executing this agreement, Licensee acknowledges and affirms that they are an active, in good-standing, licensed clinician. Licensee agrees that they are utilizing this content solely within the scope of their professional discretion and judgment, only in the context of providing care under Licensee’s direct care and supervision. Licensee further accepts full responsibility for the impact of this content on those in Licensee’s care and understands that, as the attending licensed clinician, Licensee is solely responsible for offering and facilitating any necessary supportive resources to the individual viewer. Licensee acknowledges that the content is intended strictly for individual viewing and may not be shown or distributed in a group or public setting under any circumstances. Lastly, Licensee confirms that the content is intended for adult audiences only and agrees that it will not be shown to anyone under the age of 18. Licensee agrees to convey the nature of the content and its purpose to any individual that will view the content under their care. Licensee acknowledges and agrees that each license purchased shall constitute 1 (one) view for 1 (one) person. Should Licensee desire to distribute the content to multiple parties (ex. the family members of someone in their care, natural supports, or other parties), additional licenses will be purchased for each viewer.