TERMS AND CONDITIONS FOR PLATFORM FOR PRIVATE PRACTICE

PLEASE READ THESE TERMS AND CONDITIONS FOR PLATFORM FOR PRIVATE PRACTICE (THE “TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY PRESENCELEARNING, INC., (“PRESENCELEARNING”). BY CLICKING THE “SUBMIT” BUTTON OR BY USING THE SERVICES IN ANY MANNER, YOU, OR YOUR ENTITY, ( “YOU”, “YOUR” OR “PRIVATE PRACTICE”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND ARE A PARTY TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND PRIVATE PRACTICE. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS OF THESE TERMS YOU TO MAY NOT USE SERVICES.
SERVICES.

These Terms govern Your use of and access to the Platform (“Services”). The Platform is a teletherapy platform which allows therapists to provide real-time, online therapy or consultations. The “Platform” means and includes: (i) proprietary software application (in both source code and object code form), (ii) the components of the Platform including software or other information and technology that is embodied in the platform (“Components”), (iii) written, printed or otherwise recorded or stored material that relates to the platform, including technical specifications, source code annotations, training and support materials, descriptions of the principles of operation of source code, other instructions (“Documentation”), (iv) proprietary self-guided training modules (“Telehealth Institute”), (v) evidence-based and user-generated content library with 100K+ items and therapy playlists using PresenceLearning proprietary content (“Library”), (vi) any invention, modification, addition, derivative work, enhancement, revision, translation, abridgment or expansion to (i) through (v) (“Improvements”) and (vii) updates to any part thereof.

LICENSE.

License Grant. During the Your Subscription Term, PresenceLearning grants to Private Practice a limited, non-exclusive, revocable, non-sublicensable, non-transferable, royalty-free, right and license to use and display the Platform. This license includes Your ability to give limited access to only Your patients (“End Users”). You will get a unique URL that takes the End Users to Your private online therapy room (“Therapy Room”). You agree not to allow access or to give use of the Platform to anyone that is not a patient of your Private Practice.

Safeguarding. You shall establish, maintain and enforce policies and procedures to safeguard and protect the Platform and PresenceLearning Property (as defined below), which are no less rigorous than reasonable standards relating to Private Practice’s confidential information and property. You will be responsible for all acts and omissions of You, Your employees, and End Users in regard to their access and use of the Platform and PresenceLearning Property.

Business Use. By subscribing for Services, You agree that Your use of the Platform and PresenceLearning Property is solely for the business purpose of Your Private Practice to provide therapy services to End Users and does not include providing services to Schools or School Districts. You acknowledge and agree that using Services to administer or provide services to Schools and School Districts are in direct competition to PresenceLearning and it is not allowed. The use of Platform and PresenceLearning Property for any other purpose than Business Use will constitute cause for immediate termination to Platform access.

Ownership. PresenceLearning will have and retain sole and exclusive ownership of, and all right, title and interest in the Platform and PresenceLearning Property.

Disclosure of Improvements and Developments. Unless otherwise provided in these Terms, PresenceLearning will have no obligation to disclose to You any Platform improvements or modifications.

Acknowledgements. You acknowledge and agree PresenceLearning is in the business of commercially licensing the Platform or providing services relating to the Platform to third parties and that the Platform may contain errors. PRESENCELEARNING SHALL NOT HAVE ANY DUTIES OR RESPONSIBILITIES UNDER THESE TERMS OTHER THAN THOSE SPECIFICALLY SET FORTH IN THESE TERMS AND NO IMPLIED OBLIGATIONS SHALL BE READ INTO THESE TERMS. PRESENCELEARNING RETAINS ALL RIGHT, TITLE, AND INTEREST IN AND TO THE PLATFORM NOT EXPRESSLY LICENSED UNDER THESE TERMS.

RESTRICTIONS.

Competitors. You agree to not share or make available the Platform or PresenceLearning Property to any person or entity that competes with or attempts to compete with PresenceLearning in providing or offering SLP, OT, BMH via teletherapy to a school or school district.

No Reverse Engineering. Private Practice shall not itself (and shall ensure that its employees do not): (i) modify, port, adapt, translate any portion of the Platform or its software; and (ii) reverse engineer, decompile or disassemble or otherwise attempt to discover, within the Platform or software involved, the source code, data representations or algorithms, process, methods, and any other portion of the Platform.

Sublicensing and Third Parties. You will not have the right to grant a sublicense to the rights granted in Section 2.

Misuse. If You misuse the Services in any illegal manner, or as listed, You will permanently lose access to the Services. You must not

enable or allow others to use the Services using Your account information;
circumvent any access or use restrictions put into place to prevent certain uses of the Services;
engage in behavior that violates anyone’s Intellectual Property Rights. “Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights;
Upload to Platform and/or share any of Your Content that is unlawful, harmful, threatening, obscene, violent, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, hateful, or otherwise objectionable;
Use the Platform and/or share any of Your Content that sexualizes minors or that is intended to facilitate inappropriate interactions with minors, or other End Users;
impersonate any person or entity, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
attempt to disable, impair, or destroy the Platform;
upload, transmit, store, or make available any of Your Content that contains any viruses, malicious code, malware, or any components designed to harm or limit the functionality of the Platform;
disrupt, interfere with, or inhibit any other user from using the Platform (such as stalking, intimidation, harassment, or incitement or promotion of violence or self-harm);
engage in chain letters, junk mails, pyramid schemes, phishing, spamming, fraudulent activities, or other unsolicited messages;
place an advertisement of any products or services in the Library; or
violate any laws.

TERM AND TERMINATION.

Subscription Term. Your subscription begins as of Your initial payment, and then will automatically renew each month without notice until You cancel. PresenceLearning will automatically charge You the then-current rate, plus applicable taxes, every month upon renewal. We will notify You of any fee changes with the option to cancel. If applicable taxes change during Your monthly term, PresenceLearning will adjust the taxes to Your next monthly billing.

Cancelation of Subscription. You may cancel Your subscription at any time by emailing asksupport@presencelearning.com. Once the monthly fee is paid, it is final and NON-REFUNDABLE.

Suspension of Use. Failure to make a recurring payment, for any reason, will result in suspension of Your subscription. PresenceLearning may also, at its sole discretion, suspend Your subscription for violation of any these Terms.

Effects of Termination. Upon the expiration of a Subscription Term or as provided in 4.3, You will immediately lose access to the Platform.

FEE AND PAYMENT TERMS. You will pay the monthly subscription fee plus any applicable taxes, on the monthly basis. PresenceLearning will use a third-party provider to collect payments from You. PresenceLearning does not collect or store any credit card p-5 bg-lightest mb-3 information from You or for You. Monthly subscription fees are (i) payable in United States dollars only, (ii) based on purchase, regardless of usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, (iv) Subscription purchased cannot be decreased during the then-then current Subscription Term.

PATIENT PAYMENTS.

PresenceLearning will not collect any type of payments from Your End Users. You are solely responsible for collecting payments from Your End Users by Your own means. PresenceLearning is not responsible for any financial transactions between You and Your End Users.

COMPUTER SPECIFICATIONS AND REQUIREMENTS.

The Platform is a cloud application. The following system requirements are needed by Private Practice and End Users:
Any computer with Dual core processor and 2 GB RAM;
Ability to support headset and mic;
A broadband internet connection with a minimum of 500 kbps (or higher) upload and download speeds of 1 mbps or higher preferred.
For more information You should refer to https://presencelearning.com/tc/eq-spec/

TECHNICAL SUPPORT.

PresenceLearning will provide technical support on weekdays between the hours of 6:00 am and 6:00 pm Mountain Standard Time (MST).

PROPRIETARY RIGHTS.

PresenceLearning Property. PresenceLearning owns all right, title and interest in the Platform, all materials, content, specifications, all modifications, enhancements, improvements, and all derivative works related to the Platform. In addition, PresenceLearning retains all rights and title to items to proprietary content in Library including therapy playlists and documents and to all Telehealth Institute content. PresenceLearning retains all right, title and interest to any work product or other intellectual property developed and/or created for You in connection with Services, including any content provided by PresenceLearning on behalf of Private Practice in or through the Platform. Intellectual Property that is licensed to PresenceLearning from a third party, such intellectual property will be included in PresenceLearning’s Property only to the extent that PresenceLearning has the right to sublicense such Intellectual Property to You within the scope of the license granted hereunder.

Your Property. Your property or content (“Your Content”) that You upload to the Library is and shall remain the Your sole and exclusive property.

Use of Your Property. Whenever You upload Your Property to the Library, You grant to PresenceLearning a non-exclusive, royalty-free license to modify, display, combine, copy, store, transmit and to use the Your Property. You can revoke this grant at any time with fifteen (15) days written request to PresenceLearning delete Your Property from the Library.

Removal of Your Content. If PresenceLearning determines in good faith, at its discretion, that any Your Property could (i) pose a material security risk, (ii) be deceptive or perceived as libelous, defamatory, obscene, racist, hateful, or otherwise objectionable, or (iii) give rise to a liability, or in violation of law or any misuse listed in Section 3.4, then PresenceLearning may remove the offending property, suspend Your use of the Platform, and/or pursue other remedies and corrective actions.

PRIVACY.

HIPAA and other privacy laws. You will be solely responsible for compliance of all privacy laws that are applicable to it and its Business Use, such as HIPAA. You agree that PresenceLearning will not have access to any of End Users data, including personally identifiable information. You will be fully responsible for receiving, collecting and storing the data of its therapy sessions and of its End Users.

Privacy Policy. For information about how we collect, use, share, or otherwise process information about You and Your use websites, please see PresenceLearning’s Privacy Policy.

Your Therapy Room. At times a PresenceLearning’s employee may need to enter or access to Your Therapy Room in order to perform maintenance or offer technical support. You will be notified that someone is entering the Therapy Room.

YOUR REPRESENTATIONS AND WARRANTIES.

You represent and warrant that You will use the Services solely for the Business Use and in accordance with these Terms.

You further agree and acknowledge You have verified the Platform’s performance, functionality, access to, and availability, and found it suitable for Your needs and requirements.

By uploading Your Content to the Library, You agree that You have all rights necessary to grant, upload, and share Your Content.

In the event that You or End Users uses the Services in an inappropriate manner or otherwise does not comply with these Terms, Private Practice shall be jointly and severally liable for any consequences and shall hold PresenceLearning harmless and indemnify PresenceLearning upon its demand for any damages, claims or actions regarding Your Content.

DISCLAIMERS OF WARRANTIES.

The Services are provided ‘AS-IS’ and to the maximum extent permitted by law, PresenceLearning disclaims all warranties, express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. Further, PresenceLearning disclaims any warranty that the Services will meet Your requirements or will be constantly available, uninterrupted, timely, secure, or error-free. In addition, PresenceLearning disclaims all liability for any actions resulting from Your use of the Services. You understand that Your use and access to the Platform is at Your own discretion and risk, and You are solely responsible for any damage to Your computer systems or loss of data that results from such use. If you post or upload Your Content to the Platform, PresenceLearning is not responsible for any loss, corruption, damage, deletion of Your Content.

INDEMNIFICATION.

You will defend, indemnify and hold harmless PresenceLearning, its officers, agents, employees, and affiliates from and against any claim, demand, loss, or damage, including reasonable attorneys’ fees, arising out of or related to (i) Your Content; (ii) Private Practice’s use of the Service; (iii) Private Practice’s illegal behavior or conduct; and (iv) Private Practice’s or End User’s use of the Platform or PresenceLearning Property in any manner inconsistent with or in breach of these Terms; and/or (iv) any claim alleging facts that would constitute a breach of Your representations and warranties made in these Terms. You agree to fully cooperate with PresenceLearning in any defense of a claim.

LIMITATION ON LIABILITY.

DAMAGE DISCLAIMER. NO EVENT SHALL PRESENCELEARNING BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF SERVICES OR PLATFORM. NOTHING IN THESE TERMS LIMITS OR EXCLUDES OUR LIABILITY FOR GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OF PRESENCELEARNING OR ITS EMPLOYEES, DEATH, OR PERSONAL INJURY.

GENERAL DAMAGE CAP. PRESENCELEARNING’S TOTAL LIABILITY IN ANY MATTER ARISING OUT OF OR RELATED TO THESE TERMS IS LIMITED TO THE GREATER OF (I) US $100; OR (II) THE AGGREGATE AMOUNT YOU PAID FOR THE SERVICES DURING A THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THESE LIMITATIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW EVEN IF (A) A REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES; OR (B) PRESENCELEARNING KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF DAMAGES.

MISCELLANEOUS.

Updates to Terms. PresenceLearning may modify these Terms from time to time, and when that happens the effective date on the top of this page will be updated as notice. You should look at these Terms regularly. Unless stated otherwise, the updated Terms will be effective immediately upon the effective date shown, and Your continued use of the Services will confirm Your acceptance of the changes. If at any point in time You do not agree with these Terms You should stop use of the Services.

Survival. Upon the expiration or termination of the Subscription Term or these Terms, all access to Services may cease without prior notice. Sections 3.2, 9.1 12, 13 and 14 will survive expiration or termination of any Subscription Term or these Terms.

Assignment. You will not assign or otherwise transfer Your rights and obligation under these Terms, in whole or in part, without the prior written consent, and any attempt to do so will be null and void. PresenceLearning may transfer PresenceLearning’s rights under these Terms to a third party.

Headings. Headings used in these Terms are provided for convenience only and will not be used to construe meaning or intent.

Force Majeure. PresenceLearning is not liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, epidemic, pandemic, labor conditions, power failure, and Internet disturbances.

No Waiver. PresenceLearning’s failure to enforce or exercise any provision of these Terms is not a waiver of that provision.

Severability. If any provision of these Terms is held invalid or unenforceable for any reason, these Terms will continue in full force and effect.

Injunctive Relief. Notwithstanding the foregoing, in the event of Your or others’ unauthorized access to or use of the Services or Software in violation of these Terms, You agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

Notices. To PresenceLearning: You may send notices to PresenceLearning at the following address: PresenceLearning, Inc., 530 Seventh Ave, Suite 407, New York, NY 10018, Attn: Legal Department or via email at legal@presencelearning.com. To Private Practice: Notices will be sent to You by the email You provided or other legally acceptable means.

Independent Contractors. The parties are and shall remain independent contractors and nothing in these Terms shall be deemed to create any agency, partnership, or joint venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other nor shall either party have any right or authority to create any obligation on behalf of the other party.

Governing Law. These Terms are governed by the law of New York State without regard to conflict of law rules.

DMCA.

PresenceLearning understands the importance of Intellectual Property Rights of others. PresenceLearning will respond to notices of copyright infringement consistent with the Digital Millennium Copyright Act (“DMCA”): Copyright Agent: PresenceLearning, Inc., 530 Seventh Ave, Suite 407, New York, NY 10018, Attn: Legal Department or via email at legal@presencelearning.com.