TINY HABITS TRAINING LLC
HOSTED SERVICES AGREEMENT (COACHES)
THIS TINY HABITS TRAINING LLC HOSTED SERVICES AGREEMENT (“Agreement”) is entered into as ____________________, 2017(“Effective Date”), by and between Tiny Habits Training LLC (“THTL”) with an address at 1431 Yew Circle, Healdsburg, CA 95448 and ________________, with an address at ___________________ (“You”).
“Data” means all electronic data and information submitted or provided by You or Your Habiteers to the Services.
“Feedback” means feedback or suggestions about the features, functions, or operation of the Services.
“Habiteer” means an individual who has enrolled with You to participate in a weeklong Tiny Habits coaching session over email, and to whom You have provided a link to access the Services.
“Protected Information” means (i) data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, (ii) any patient medical or other health information protected by the Health Insurance Portability and Accountability Act or similar federal and state laws, (iii) Cardholder Data, as that term is defined in the PCI standards; (iv) information subject to regulation or protection the Gramm-Leach-Bliley Act (or related rules or regulations); or (v) any other sensitive or personally identifiable information that is subject to specific regulations or laws that impose increased protections and/or obligations with respect to handling that type of information.
“Services” means THTL’s hosted software application primarily for the management and delivery of THTL content to Habiteers.
“Subscription Fee(s)” means THTL’s then-current fees for the Services. THTL may increase its Subscription Fees from time to time upon fifteen (15) days’ prior written notice to You.
“Subscription Term” means the term for which you have purchased a subscription to use the Services,.
“Term” means has the meaning set forth in Section 5.1.
2. SUBSCRIPTION TERMS
2.1. Subscription Services. Subject to Your compliance with the terms and conditions of this Agreement, THTL hereby grants You a non-exclusive, non-transferable, non-assignable right (i) to access and use the Services during the Subscription Term, and (ii) to provide a confidential link to the Services to Your Habiteers in order for such Habiteers to enroll to receive emails generated by the Services during the time they are receiving Tiny Habits coaching from You.
2.2. Usage Limits. Coach may not use the Services for more than one thousand (1,000) Habiteers per week.
2.3. Tiny Habits Coach Certification. In order to use the Services, You must have a current, fully paid agreement in good standing with THTL certifying You as a Tiny Habits Coach (“Certification Agreement”) at all times during the Subscription Term. To the extent Your Certification Agreement prohibits coaching via email, such limitation is deemed amended solely to permit You to use the Services in connection with Your coaching. You are not permitted to provide coaching services via email in any other manner. If Your Certification Agreement is terminated at any time during the Subscription Term, Your access to the Services will also terminate.
3. YOUR OBLIGATIONS
3.1. Services Access. You are responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other services needed to access the Services. As part of the initial registration process, You will create a username and password, which You agree to keep confidential and not share with any third party. You agree to immediately notify THTL of any suspected or unauthorized use of Your account of which You becomes aware. You understand that THTL will have access to, and may review, all content You enter into the Services.
3.2 . Restrictions. You may not use the Services other than as authorized in this Agreement or the instructions or guidelines that appear in the Services. Without limiting the generality of the foregoing, You may not (i) sell, resell, rent, lease, sublicense, distribute, time-share, modify, translate or create derivative works of the Services; (ii) make the Services available to any third party (except to the limited extent Your Habiteers interact with the Services); (iii) use the Services for unlawful or illegal purposes or to store or transmit material in violation of third party intellectual property, publicity, or privacy rights; (iv) access the Services for purposes of monitoring their availability, performance or functionality or for any other benchmarking or competitive purposes; (v) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the Services or to interfere with their functionality; (vi) attempt to disable or circumvent any security features of the Services, or permit unauthorized access to the Services; (vii) send or store material containing viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents or programs; or (viii) create a competitive product.
The Services may contain forum areas where You may discuss issues related to Tiny Habits coaching with other Tiny Habits coaches.You will comply with all discussion guidelines provided by THTL in such forums.You will not disclose any personally identifying information regarding Your Habiteers in such forums.
3.3. Messaging Requirements. The Services will allow you to send email messages to Your Habiteers. You will be able to customize certain portions of these messages, and other portions of the email messages will contain content from THTL that You cannot change. With respect to any customizeable portions of email messages sent through the Services, You agree that (i) You will use the Tiny Habits name and trademark in accordance with the Tiny Habits trademark guidelines provided to You, (ii) You will not disparage THTL or the Tiny Habits program or methodology in any way, and (iii) You will communicate in a professional manner that at all times reflects favorably on THTL and the Tiny Habits program.
3.4. Compliance with Laws. You will comply with all applicable laws and regulations in connection with Your use of the Services, including but not limited to all applicable privacy and export control laws and regulations. You will defend, indemnify and hold THTL harmless from and against any claim brought against THTL by a third party, any final award of damages or settlement amount, and any liabilities or expenses incurred by THTL (including reasonable attorneys’ fees) as a result of a claim which alleges the access, use, or provision of any Your Data in connection with Your use of the Services violates any applicable law, regulation, or the proprietary rights of any third party.
3.5. Protected Information. You acknowledge that the Services are not designed for or intended to store, process or manage any Protected Information and You agree not to use the Services for any such purpose.
3.6. Confidentiality. The user interface and functionality of the Services is the confidential information of THTL. You agree not to disclose such information to any third party without the prior written consent of THTL.
4.1. Payment Terms. All amounts payable under this Agreement are due prior to your access to the Services. Late payments on any undisputed amounts may be subject to interest charges of one percent (1.0%) per month or the maximum permitted by law, whichever is lower. All payment obligations are non-cancelable and nonrefundable.
4.2. Taxes. All amounts payable by You under this Agreement are exclusive of any and all applicable sales, use and other taxes, other than taxes based on THTL’s income. If all or any part of any payment owed to THTL under this Agreement is withheld based upon a claim that such withholding is required pursuant to the tax laws of any country or its political subdivisions and/or any tax treaty between the U.S. and any such country, such payment shall be increased by the amount necessary to result in a net payment to THTL of the amounts otherwise payable under this Agreement.
5. TERM, TERMINATION AND SUSPENSION
5.1. Term. Subject to termination as set forth in this Section, the term of this Agreement will commence on the Effective Date and will continue for as long as any Services are being provided to You under this Agreement (the “Term”).
5.2. Termination. THTL may terminate this Agreement if You commit a material breach of this Agreement and do not cure the breach within ten (10) days from receiving written notice, or immediately if the breach is incapable of cure. In addition, THTL may terminate this Agreement for its convenience on ten (10) days’ written notice, in which event THTL will refund to You any prepaid fees for the remainder of Your Subscription Term.
5.3. Suspension of Services. Without limiting the terms of Section 5.2, THTL reserves the right to suspend access to the Services if (i) You have undisputed amounts that remain unpaid more than thirty (30) days after receiving written notice that such amounts are past due, (ii) THTL needs to address issues with the Services or perform maintenance on the Services; (iii) THTL reasonably determines that You are using the Services in a way that creates a security vulnerability to the Services or the systems of THTL or any third party, or that You are using the Services in violation of law, or (iv) THTL reasonably determines that You are in breach of Section 3 of this Agreement.
5.4. Effect of Termination. On the expiration or termination of this Agreement, THTL will cease providing the Services, and You will promptly pay THTL any Subscription Fees that had accrued but had not been paid prior to the effective date of termination. Sections 3.6, 4.1, and 5-9 survive termination or expiration of this Agreement.
6. PROPRIETARY RIGHTS
6.1. Services. As between the parties, THTL owns all right, title and interest in and to Services, including any modifications, improvement, upgrades, derivative works, enhancements and Feedback related thereto and all intellectual property rights therein. This Agreement does not grant You any ownership rights in the Services.
6.2. Data. As between THTL and You, THTL owns and retain all rights to Your Data. You hereby assign, and agree to assign, all right, title and interest in and to Your Data to THTL. To the extent any of the rights, title and interest in and to Your Data cannot be assigned by You to THTL, You hereby grant to THTL an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights in Your Data. To the extent any of the rights, title and interest in and to Your Data can neither be assigned nor licensed by You to THTL, You hereby irrevocably waive and agree never to assert the non-assignable and non-licensable rights, title and interest against THTL or any of its successors in interest or sublicensees.
6.3. Feedback. To the extent You provide any Feedback to THTL, whether originating from You or any Habiteer, You hereby grant THTL a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to reproduce, prepare derivative works of, distribute, perform, display, and otherwise fully use, practice and exploit such Feedback for any purpose whatsoever.
THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. THTL MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES THAT MAY ARISE BY OPERATION OF LAW. WITHOUT LIMITING THE FOREGOING, THTL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
8. LIMITATION OF LIABILITY.
8.1 Exclusion of Consequential Damages. THTL WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY TYPE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
8.2 Liability Cap. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL THTL’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR FOR INDEMNITY OR OTHERWISE) EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU TO THTL DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
8.3 Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. GENERAL. Any claim, dispute or controversy relating to this Agreement will be governed by the laws of the State of California without giving effect to any choice of law principles. Any such claim, dispute or controversy must be brought in a court of competent jurisdiction, federal or state, located within Sonoma or San Francisco County, California, and the parties hereby irrevocably consent to personal jurisdiction and venue in such court. The parties are independent contractors and neither party is an employee, agent, servant, representative, partner, or joint venturer of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other. This Agreement may not be assigned by You, even by operation of law, in a merger or stock or asset sale, without the express written permission of THTL. Any attempt to do so will be null and void. This Agreement may be signed in one or more counterparts, each of which will be deemed to be an original and all of which when taken together will constitute the same agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and merge all prior discussions, both oral and written, between the parties related to the subject matter hereof. The failure of either party to require performance by the other party of any provision of this Agreement shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.
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