Mind/Body
Workshops, LLC
Mind/Body
Workshops
KICK OUT STRESS
PROGRAM
INSTITUTIONAL
SOFTWARE LICENSE AGREEMENT
Date:
____/____/____
Institution: _______________________________________________
(the “Licensee”)
Address:
_______________________________________________________________
Contact Name:
_______________________ email: _____________________________
Phone:
______________________________ fax: _______________________________
Tax ID Number: (if applicable) _____________________________________________
Broker for
Mind/Body Workshops, LLC: ____________________________________
License Package
(number of
users): __________________________________________
License Fee: ____________________________________________________________
Additional Fees:
_________________________________________________________
________________________________________________________________________
Shipping
Charges
(initial here if to be billed later): _____________________________
READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. ONCE YOU HAVE
READ ALL OF THESE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THEM, INDICATE
YOUR AGREEMENT BY SIGNING AT THE BOTTOM OF THIS AGREEMENT. THE SOFTWARE
INSTALLER THAT IS PART OF THE KICK OUT STRESS PROGRAM CONTAINS A SINGLE USE
LICENSE AGREEMENT WHICH YOU AGREE WILL BE SUPERSEDED BY THIS AGREEMENT FOR THE
PURPOSE OF INSTITUTIONAL USE.
1. License. In this license agreement ("License
Agreement"), the institutional licensee of the license rights granted by
this Agreement identified above is referred to as "Licensee" or
"You." You represent and warrant that the individual signing on Your
behalf below is an authorized agent with purchasing power and the full right,
power and authority to represent You and enter into this License Agreement on
Your behalf.
Subject to the terms and
conditions of this License Agreement, Mind/Body Workshops, LLC
("Licensor") grants Licensee the non-exclusive, non-transferable
license to use the software known as the KICK OUT STRESS PROGRAM version _____ ("Software"),
and the accompanying audio compact disc (“Audio CD”), workbook (“Workbook”),
and other documentation ("Documentation"). In this License Agreement,
the Software, Audio CD, Workbook, and other Documentation and any copies or
modifications are referred to collectively as the "Licensed Product."
This License Agreement permits
You to give access to the Licensed Product ONLY to Permitted Users meaning: (i) users affiliated with your organization as
students or patients/clients; (ii) for their respective non-commercial,
personal or training use; and (iii) up to the number of users identified above
and fully paid for pursuant to the attached usage rider (“Usage Rider”). The
manner in which Permitted Users are to be counted is set forth in the Usage
Rider. Each copy of the Software provided shall only be used on a single
computer at one time under the guidance and supervision of the Licensee. The
Workbook and Audio CD may be permanently loaned to the Permitted Users,
provided that each Permitted User agrees not to lend, sell, give or transfer
the Workbook or Audio CD to anyone else. Licensee shall not, and shall not
permit Permitted Users to, sell, assign, trade, sub-license, transfer or
distribute the Licensed Product to anyone other than Permitted Users, and this Agreement
shall automatically terminate in the event of such a prohibited transfer or
distribution. Licensee shall not copy or modify the Licensed Product, except
that Licensee may copy the Software and Audio CD once for the sole purpose of
backup as long as all copyright and other notices are reproduced and included
on the backup copy. Photocopies of worksheet pages from the Workbook may only
be made for use by Permitted Users without charge and only in reasonable
quantity provided that no copyright or other notices are removed or obscured.
It is a material and on-going
condition to this License Agreement that You limit use of the Licensed Product in
accordance with this Section 1. The Licensor shall have the right (but
no obligation) to audit Your compliance with this License Agreement and You
shall cooperate reasonably with any such audit.
Nothing in this License
Agreement shall be deemed to confer ownership of any kind in or to the Licensed
Product. As between Licensor and Licensee, all rights in and to the Licensed
Product, including, but not limited to, copyrights and trade secret rights,
belong to Licensor and Licensor holds title to each copy of the Software. This
License Agreement does not grant You any right to any enhancement or update to
the Licensed Product.
2. Term. This License Agreement is effective until
terminated. Licensee may terminate this License Agreement by returning all
copies of the Licensed Product to Licensor. Licensor may terminate this License
Agreement if Licensee breaches any of the terms and conditions. Upon
termination of this License Agreement for any reason, Licensee shall return all
copies of the Licensed Product to Licensor. All provisions of this License
Agreement relating to disclaimers of warranties, limitation of liability,
remedies, or damages, and Licensor's proprietary rights shall survive
termination.
3. Object Code; Confidentiality. The Software is delivered in object code
only. Licensee shall not modify, translate, decompile, disassemble, reverse
engineer or create derivative works from the Software or based upon the
Software or the Documentation. Any and all versions of the Software, whether
object or source code, and the Licensed Product are confidential and
proprietary to Licensor. You shall use reasonable care to protect that
confidentiality with respect to Licensed Product in Your possession. You agree
that Licensor may seek temporary or permanent injunctive relief from any actual
or threatened unauthorized use, distribution or disclosure of the Licensed Product
or any of it without posting bond or other security in addition to any other
damages Licensor can demonstrate.
4. Limited Warranty. Licensor does not warrant that the functions
contained in the Licensed Product will meet Licensee's requirements or that the
operation of the Software or Audio CD will be uninterrupted or error-free.
Licensor does warrant that the media on which the Software and Audio CD are
furnished will be free from defects in materials and workmanship under normal
use for a period of thirty (30) days from the date of delivery ("Warranty
Period"). Any other software and any hardware furnished with or
accompanying the Software is not warranted by Licensor. Licensee's exclusive
remedy under this limited warranty is the replacement of any defective physical
media on which the Software is furnished, or refund of license fees as provided
below. To receive a replacement for defective media under this limited
warranty, return the defective media to Supplier during the Warranty Period,
with proof of payment. All claims and inquiries should be forwarded to
Mind/Body Workshops, LLC, c/o Customer Service Department,
EXCEPT AS PROVIDED ABOVE, THE LICENSED PRODUCT IS PROVIDED
"AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND THE ENTIRE RISK AS
TO THE QUALITY AND PERFORMANCE OF THE LICENSED PRODUCT IS WITH LICENSEE.
5. Limitation of Liability.
LICENSOR'S SOLE OBLIGATION OR
LIABILITY UNDER THIS AGREEMENT IS THE REPLACEMENT OF DEFECTIVE MEDIA ACCORDING
TO THE LIMITED WARRANTY ABOVE OR, IF SUCH REPLACEMENT IS NOT SATISFACTORY TO
LICENSEE AND LICENSEE SUBMITS SATISFACTORY PROOF OF PURCHASE TO LICENSOR IN
WRITING WITHIN 90 DAYS OF PURCHASE, A REFUND OF THE LICENSE FEE PAID BY YOU. IN
NO EVENT WILL LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT
DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OR LOSS OF PROFITS OR
LOST SAVINGS, ARISING OUT OF USE OF OR INABILITY TO USE THE SOFTWARE, AUDIO CD,
WORKBOOK, OR DOCUMENTATION (OR ANY HARDWARE FURNISHED WITH THE SOFTWARE), EVEN
IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY
CLAIM BY ANY THIRD PARTY. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DAMAGES
IN CONNECTION WITH THIS LICENSE AGREEMENT BEYOND A REFUND OF THE LICENSE FEE
PAID BY YOU.
6. Disclaimer of Medical Liability. THE LICENSED PRODUCT IS NEITHER A PSYCHOLOGICAL
OR OTHER MEDICAL DIAGNOSTIC TOOL TO BE USED FOR ASSESSMENT, NOR IS IT A
SUBSTITUTE FOR PSYCHOTHERAPY OR OTHER MEDICAL TREATMENT. IF USERS ARE FEELING
ANXIOUS, DEPRESSED, HAVING DIFFICULTY MANAGING ANGER, OR EXPERIENCING ANY OTHER
PSYCHOLOGICAL OR PHYSICAL PROBLEM, YOU, OR THEIR GUARDIANS SHOULD CONTACT A
LICENSED MENTAL HEALTH PROFESSIONAL OR OTHER LICENSED PHYSICIAN FOR ADVICE OR
TREATMENT. LICENSEE ACKNOWLEDGES BY ALLOWING OTHERS TO USE THE LICENSED PRODUCT
THAT PRIOR CONSULTATION WITH A LICENSED MEDICAL PROFESSIONAL REGARDING THE
LICENSED PRODUCT’S INTEGRATION INTO THE USER’S PERSONAL HEALTHCARE PRACTICES IS
MANDATORY FOR COMPLIANCE WITH THE TERMS OF THIS LICENSE AGREEMENT. THE LICENSED
PRODUCT IS ASSUMED BY THE LICENSOR TO HAVE BEEN PURCHASED BY THE LICENSEE FOR A
USER’S INDIVIDUAL USE. IF A USER USING THE LICENSED PRODUCT IS A MINOR, THE
LICENSOR SHALL NOT ASSUME RESPONSIBILITY FOR THE LEGAL RIGHT OR JUDGMENT OF
LICENSEE IN ADVISING USE OF THE LICENSED PRODUCT OR FAILING TO SEEK LICENSED
MEDICAL GUIDANCE PRIOR TO USE. INDIVIDUAL’S WHO ARE MINORS OR OTHERWISE LEGALLY
RECOGNIZED AS BEING UNDER THE GUARDIANSHIP OF A THIRD PARTY MAY NOT LEGALLY
ENTER INTO THIS LICENSE AGREEMENT. LICENSOR DOES NOT TAKE RESPONSIBILITY FOR
LICENSEE AUTHORIZING OR FAILING TO AUTHORIZE AND/OR SUPERVISE THE USE OF THE
LICENSED PRODUCT TO OR BY A MINOR. THE LICENSOR SHALL NOT TAKE RESPONSIBILITY
FOR IRRESPONSIBLE OR UN-PERMITTED USE OF THE LICENSED PRODUCT RESULTING IN
PHYSICAL OR PSYCHOLOGICAL INJURY. LICENSOR ADVISES THE LICENSEE TO RESPONSIBLY
ADJUST LICENSED PRODUCT USAGE WHICH COULD IN PARTICULAR, BUT NOT EXCLUSIVELY,
CAUSE HEARING LOSS (THROUGH EXCESSIVE VOLUME OR INAPPROPRIATE HEADPHONE USE),
VISUAL DETRIMENT (FROM INAPPROPRIATE ADJUSTMENT OF OR PROXIMITY TO A COMPUTER
MONITOR OR OTHER DISPLAY DEVICE), AND ERGONOMICS RELATED AILMENTS (FROM
INAPPROPRIATE DESK, CHAIR, OR INPUT DEVICE ADJUSTMENT AND USAGE).
7. Warning for Individuals With Epilepsy or
Other Existing or Suspected Neurological Ailments. The Licensed Product utilizes animations
which display brightly strobing, colored lights, and rhythmic soundtrack beats.
These elements have been contraindicated for some individuals, in particular,
those suffering from epilepsy and certain other neurological conditions. If
Licensee has knowledge of such a preexisting medical condition in a user,
suspected medical condition, or uncertainty about the possible presence of a
medical condition, Licensee is advised to direct such user into consultation
with a licensed neurologist or other medical professional prior to use.
8. Limitation of Liability Regarding Product
Intent. The Licensed Product
does not promote a specific set of social, religious, philosophical, ethical,
or political beliefs. Licensor takes no responsibility for individual
interpretation on the part of Licensee, users, affiliates, or other interested
third parties concerning intent of inculcation or persuasion of values,
ideological positions, or states of mind.
9. General. Any attempt to sublicense, assign or transfer
any of the rights, duties or obligations hereunder is void and a material
breach of this License Agreement. This License Agreement shall be governed by
and interpreted under the laws of the State of New York, United States of
America, without regard to conflicts of law provisions. Any lawsuit or claim in
connection with this License Agreement or the Software may be brought only in
the State or Federal courts located in
10. Third Party Software. The Licensed Product is distributed with
third party software which must be properly installed for the Licensed Product
to function as intended. This third party software is subject to the end user
license agreements of its individual manufacturers or distributors and cannot
be distributed, copied, reverse compiled, reverse engineered, or used in a non-
prescribed manner without the express permission of the individual
manufacturers or distributors of the third party software.
The Licensed Product may include software provided by:
Macromedia Director Projector (Version MX) - DIRECTOR® COPYRIGHT ©
1984-2000 Macromedia, Inc.
3ivx 4.5 Video Codec - This presentation makes use of 3ivx D4 4.5
MPEG-4 Audio and Video Compression Technology. Copyright © 3ivx Technologies
Pty. Ltd., 1999-2003, All rights reserved. 3ivx® is an international trademark.
Individual software end user license agreement information is included with the
installer for this product.
Apple Quicktime Plugins/Player - QuickTime and QuickTime Logo are
trademarks used under license. The QuickTime logo is registered in the
11. RESTRICTED RIGHTS LEGEND. The Licensed Product is Restricted Computer
Software as defined in 48 CFR 52.227-19(a). Use, duplication, or disclosure by
the Government is subject to restrictions as set forth in subparagraph (c) of
the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013
and subparagraphs (c)(1) and (2) of the Commercial Computer Software –
Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer for these
purposes is Mind/Body Workshops, LLC,
12. Indemnity. You shall indemnify and hold Licensor and its
affiliates harmless from any and all liability, loss, costs, claims and causes
of action, including reasonable attorneys’ fees and disbursements related to or
resulting from Your use of the Licensed Product and from any use by any user
who gained access to the Licensed Product by or through You. You may not
conclude a settlement in any such indemnified matter without Licensor’s prior
written consent.
LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS
LICENSE AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS. LICENSEE FURTHER AGREES
THAT THIS LICENCE AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN LICENSEE AND LICENSOR, AND SUPERSEDES ANY PROPOSAL OR PRIOR
AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO ITS SUBJECT
MATTER.
IN WITNESS WHEREOF, Licensor
and Licensee have caused this License Agreement to be executed as of the date
first written above by their respective authorized signatories.
MIND/BODY
WORKSHOPS, LLC LICENSEE: ________________________
By: ___________________________ By:
________________________________
Name: Name:
Title: Title:
[see Usage Rider attached]
KICK OUT STRESS
MIND/BODY
WORKSHOPS, LLC
USAGE RIDER
Each Permitted User is a single identified individual. Each Permitted User may access the Licensed
Product an unlimited number of times for personal use and shall only be counted
once toward the User License thresholds below. For the avoidance of doubt, this
is not a “contemporaneous use” or “seat” license.
Each license package contains the indicated number of Workbooks,
Audio CD’s and copies of the Software: (please check one)
[ ] 50
User License: 50 Workbooks, 50 Audio
CDs, 10 Copies of the Software
$75.00 per user $3,750.00 Package
[ ] 100
User License: 100 Workbooks, 100 Audio
CDs, 20 Copies of the Software
$70.00 per user $7,000.00 Package
[ ] 250
User License: 250 Workbooks, 250 Audio
CDs, 50 Copies of the Software
$65.00 per user $16,250.00 Package
[ ] 500
User License: 500 Workbooks, 500 Audio
CDs, 100 Copies of the Software
$60.00 per user $30,000.00 Package
[ ] 1000 User License: 1000 Workbooks, 1000 Audio CDs, 200 Copies of
the Software
$55.00 per user $55,000.00 Package
[ ] 2500 User License: 2500 Workbooks, 2500 Audio CDs, 500 Copies of
the Software
$50.00 per user $125,000.00 Package
[ ] 5000 User License: 5000 Workbooks, 5000 Audio CDs, 1000 Copies of
the Software
$45.00 per user $225,000.00 Package
Extra Software Disks: $10.00
per platform + shipping and handling
Shipping and
Handling: Based on each order
and destination. Billing to follow order.
[PHIL, HOW WILL
THE PRICING WORK FROM ONE LICENSE LEVEL TO THE NEXT? I ASSUME YOU ACTUALLY MEAN
THE DISCOUNT ON A SECOND, HIGHER LEVEL TO BE STEEPER THAN THE RIDER REFLECTS.
FOR EXAMPLE, IF I HAVE A 50 USER LICENSE AND THEN INCREASE TO A 100 USER
LICENSE BY PAYING THE PRICE DIFFERENCE OF $3250, I’M REALLY PAYING ONLY $65 FOR
EACH OF THE SECOND 50. PLEASE CONFIRM THIS IS CORRECT.]