SUBSCRIPTION SERVICES TERMS AND CONDITIONS

SUBSCRIPTION SERVICES TERMS AND CONDITIONS
EFFECTIVE AS OF August 10, 2021

PLEASE READ THESE TERMS AND CONDITIONS FOR SUBSCRIPTION SERVICES (THE “TERMS”) CAREFULLY BEFORE USING THE SERVICES, PRODUCTS AND PLATFORM (COLLECTIVELY, “SERVICES”) OFFERED BY PRESENCELEARNING, INC. (“PRESENCELEARNING”). YOUR USE AND ACCESS TO SERVICES ARE CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS. 

BY CLICKING THE “BUY NOW” BUTTON AND/OR ACCESSING AND USING THE SERVICES IN ANY MANNER, YOU, OR YOUR ENTITY (“YOU” OR “YOUR”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY, AND ARE A PARTY TO, THESE TERMS AND ANY INCORPORATED DOCUMENTS. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS YOU MAY NOT USE SERVICES.

YOU MUST BE 18 YEARS OF AGE OR OLDER TO PURCHASE A SUBSCRIPTION FOR THE SERVICES.

CERTAIN DEFINITIONS.

The below terms are used herein with the following definitions:

“Components” means the components of the Platform including software or other information and technology that is embodied in the Platform.

“Documentation” means 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, and other instructions.

“HIPAA” means Health Insurance Portability and Accountability Act of 1996, as amended from time to time.

“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.

“Library” means licensed content available to You in the Platform.

“License” means a limited, non-exclusive, revocable, non-sublicensable, non-transferable, royalty-free, right and license to use and display the Platform and to use the Platform to provide your services to Your End User(s).

“PHI” means any personal health information.

“PII” means any information that can identify a specific individual.

“Platform” means PresenceLearning’s proprietary therapy platform and includes: (i) proprietary software application (in both source code and object code form); (ii) Components; (iii) Documentation; (iv) 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.

“PresenceLearning Property” means: (i) the Platform; (ii) all materials, content, specifications, modifications, enhancements, improvements, and all derivative works related to the Platform; (iii) all right, title, and interest to any proprietary content in the Library, including therapy playlists and documents, and all Telehealth Institute content; (iv) all right, title, and interest to any work product or other intellectual property developed by PL or for PL in connection with the Services, including any content provided by PresenceLearning on Your behalf in or through the Platform; and (v) any 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.

“Subscription Plan” means Your License to utilize the Platform during the Subscription Term.

“Subscription Term” means the length of time You have purchased a Subscription. 

“Therapy Room” means a clinician-specific, web-based, online room on the Platform only accessible by specific link controlled by the clinician to whom a virtual therapy room is assigned.

“Your End User(s)” means the students and/or patients to whom You provide clinical services.

SUBSCRIPTION TERMS.

Subscription Plans. You may purchase a monthly or annual Subscription Plan and You must use a valid credit card to purchase the Subscription Plan. Once You have made a payment, You will receive an email with instructions to activate your account. If Your Subscription Plan includes assessments, You will need to certify that You have the clinical qualifications to access and administer the assessments prior to gaining access to the Platform. 

Monthly Plan. If You purchase a monthly Subscription Plan, Your subscription begins immediately upon Your payment of the applicable fee, regardless of when You activate Your account. Your monthly subscription will automatically renew each month without notice and PresenceLearning will automatically charge You the then-current rate every month until You cancel the monthly subscription. PresenceLearning will notify You of any changes to the monthly subscription fee not less than thirty (30) days before such changes are to take effect and You will have the option to cancel the monthly subscription. Your Subscription Plan fee will include any applicable taxes.

Annual Plan. If You purchase an annual Subscription Plan, which will provide You with year-to-year access at savings over the monthly plan, Your subscription begins immediately upon Your payment of the applicable fee. Your annual Subscription Plan will automatically renew on the anniversary of day on which You purchased the Subscription Plan and PresenceLearning will automatically charge You the then-current rate. PresenceLearning will notify You sixty (60) days prior to any renewal of any changes to Your annual Subscription Plan fee and you will have the option to cancel Your annual Subscription Plan for the upcoming year. Your Subscription Plan fee will include any applicable taxes.

Promotional Free Trials. At times PresenceLearning may offer a free trial of the Subscription Plans. When You elect to participate in such a promotion, You are required to enter payment information, but You will not be charged until the end of the free trial. If You cancel Your free trial prior to the expiration of the promotional period, You will not be billed; otherwise, You will be charged for a monthly Therapy Essentials Plus Subscription Plan that will automatically renew each month without notice and PresenceLearning will automatically charge You the then-current rate every month until You cancel the monthly subscription.

Cancellation of Subscription. You may cancel Your monthly Subscription Plan at any time by emailing asksupport@presencelearning.com and Your annual Subscription Plan at any time by emailing therapyessentials@presencelearning.com. However, except as described below, no refunds (prorated or otherwise) are provided upon cancellation. For annual Subscription Plans, if You cancel within the first thirty (30) days of the start of the Subscription Term, You will be refunded an amount equal to the fees payable for one month of Services under a monthly Subscription Plan at the then-current monthly Subscription Plan rate. 

If You cancel before an upcoming renewal date, You will have access to Your account through the end of the then-current monthly or annual subscription term, as applicable.

Suspension of Use. Failure to make a recurring payment, for any reason, will result in suspension of Your Subscription Plan. PresenceLearning may also, at its sole discretion, suspend Services if You violate any of these Terms.

Effects of Termination. Upon the expiration or termination of Your Subscription Term, You will immediately lose access to the Services.

Your Credit Card Information. PresenceLearning will use a third-party provider to collect payments from You. PresenceLearning does not collect or store any credit card information from You or for You. All fees are (i) payable in United States dollars only, (ii) based on purchase, regardless of usage, and (iii), as except as specifically described above, non-cancelable and non-refundable.  In addition, You can only change an annual Subscription Plan into a monthly Subscription Plan at the end of the then-current term of the annual Subscription Plan.

Failed Charges. If Your credit card on file is closed, the account information is changed, or if, for any reason, a charge is rejected, PresenceLearning will notify You and You will have 24 hours to update Your account information or supply a new payment method, as appropriate. If You do not do so, PresenceLearning will, without liability to You, disable Your access to all or part of the Services. Accounts that have been terminated may be reactivated if valid payment information is entered within 7 days and the credit card can be successfully processed for all outstanding charges.

End User(s) Payments. PresenceLearning will not collect any payments or payment information from Your End User(s). You are solely responsible for collecting payments from Your End User(s) by Your own means and PresenceLearning is not responsible for any financial transactions between You and Your End User(s).

LICENSE.

License Grant. During the Your Subscription Term, PresenceLearning grants You the License. PresenceLearning will provide you with a unique URL that You will provide to Your End User(s) to enable Your End User(s) to access Your Therapy Room. You agree not to allow access or to give use of the Platform or Your Therapy Room to anyone other than Your End User(s).

Safeguarding. You shall establish, maintain, and enforce policies and procedures to safeguard and protect the Services and PresenceLearning Property which are no less rigorous than reasonable standards relating to Your confidential information and property. You will be responsible for all acts and omissions of You, any of Your employees, partners, independent contractors, or staff who are authorized to access the Platform, and Your End User(s) in regard to their access and use of the Platform and PresenceLearning Property.

Use. You may only use the Services pursuant to these Terms. You are responsible for You and Your End User(s) use of Services and compliance with all applicable laws and regulations.

CONTENT OWNERSHIP.

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

Your Content. You are solely responsible for all content transmitted, displayed, or uploaded by You (“Your Content”) while utilizing the Services. You agree to comply will all laws pertaining to Your Content, including intellectual property laws. You represent and warrant that You have the right to use Your Content and that such use does not violate or infringe on any rights of any third party.

Under no circumstances is PresenceLearning responsible for Your Content, the transmission and displaying of Your Content, or any loss or damages that results from Your Content. If PresenceLearning becomes aware that any of Your Content infringes on a third parties’ intellectual property right or violates any laws, then PresenceLearning may delete Your Content without notice to You, and, depending on the violation, may terminate Your Subscription.

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

Acknowledgements. You acknowledge and agree that 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.

PROPRIETARY RIGHTS.

PresenceLearning Property. PresenceLearning owns all right, title, and interest in all PresenceLearning Property, including, but not limited 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 Your behalf in or through the Platform. Intellectual property that is licensed to PresenceLearning from a third party will be deemed PresenceLearning Property only to the extent that PresenceLearning has the right to sublicense such intellectual property to You within the scope of the License.

Use of Your Property. Whenever You upload Your Content to the Platform, You grant to PresenceLearning a non-exclusive, royalty-free license to modify, display, store, transmit and to use, as necessary for provisions of Services, Your Content. This right can be revoked by You upon termination or expiration of Your Subscription Term.

Removal of Your Content. If PresenceLearning determines in good faith, at its sole discretion, that any Your Content 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 XX, then PresenceLearning may remove the offending content, suspend Your use of the Platform, and/or pursue other remedies and corrective actions.

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, SuiteM1, New York, NY 10018, Attn: Legal Department or via email at legal@presencelearning.com.

DATA COLLECTION AND STORAGE; THERAPY ROOM ACCESS; VIDEO RECORDING.

Data Collection and Storage. You are unable to upload and store Your End User(s) information within the Platform. You are able to upload and store Your Content, which should never include any PHI or PII.

Therapy Room Access. You will be assigned a link which will serve as Your link to Your Therapy Room. Your End User(s) will only be able to access Your Therapy Room through Your link. When Your End User(s) attempts to access Your Therapy Room, You will be alerted that there is someone in your online waiting room. The alert will show their name (which Your End User(s) must enter at the time requesting access) and You will have the opportunity to view the names of anyone who is in Your waiting room before allowing entrance. Only You will have the ability to allow Your End User(s) to enter Your Therapy Room.

Video Recording. You will be unable to record any sessions or activities through the Platform.

PRIVACY.

HIPAA and Other Privacy Laws. You will be solely responsible for compliance of all privacy laws that are applicable to You and Your End User(s), such as HIPAA. You agree that PresenceLearning will not have access to any of Your End User(s) data, including PII. You will be fully responsible for receiving, collecting, and storing the data of Your End User(s).

Tech Support Therapy Room Access. At times a PresenceLearning tech support technician may need to enter or access Your Therapy Room to perform maintenance or offer technical support. You will be notified prior to someone entering Your Therapy Room and will be able to deny access to Your Therapy Room during a session. The Platform offers live chat support. During chat support, tech support technician will not be able to see Your Therapy Room. If you permit the tech support technician to enter your Therapy Room, You are responsible for clearing any PII and PHI in Your Therapy Room screen and alerting Your End User, prior to tech support entering Your Therapy Room.

RESTRICTIONS.

Monthly Assessment Limitation. If you purchase a Therapy Essentials Plus Subscription Plan, you may administer up to fifty (50) assessments each month. If you exceed the monthly assessment limitation, PresenceLearning may, at its sole discretion, suspend Services or terminate Your Subscription Plan at any time and no refunds (prorated or otherwise) will be provided.

No Reverse Engineering. You shall not (and shall ensure that Your employees, partners, independent contractor, or staff do not) (i) modify, port, adapt, translate any portion of the Platform or its software or (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, or any other portion of the Platform.

Sublicensing. Except as specifically set forth in these Terms, You do not have the right to grant a sublicense or access to the Services, including, but not limited to, the Platform to any third parties. 

Misuse. If You misuse the Services in any manner, including, but not limited to, the misuses listed below, You will permanently lose access to the Services. You must not:

  • Upload or store PHI or PII;
  • 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;
  • Upload to the Platform and/or share any of 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 content that sexualizes minors or that is intended to facilitate inappropriate interactions with minors, Your End User(s), or others;
  • 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 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; or
  • Violate any laws.

COMPUTER SPECIFICATIONS AND REQUIREMENTS.

The Platform is a cloud application. The following system requirements are needed by Your End User(s):

  • Any computer with Dual core processor and 2 GB RAM;
  • Ability to support headset and microphone;
  • A broadband internet connection with a minimum of 500 kbps (or higher) upload and download speeds of 1 mbps or higher preferred; and
  • For more information contact asksupport@presencelearning.com.

TECHNICAL SUPPORT.

PresenceLearning will provide technical support on weekdays between the hours of 8:00 am and 8:00 pm Eastern Standard Time (EST). You may contact Technical Support by emailing asksupport@presencelearning.com.

REPRESENTATIONS AND WARRANTIES.

You represent and warrant that: (i) You will use the Services in accordance with these Terms; (ii) You have the clinical expertise to provide the services You intend to provide via the Platform; and (iii), if Your Services include assessments, that You possess the clinical expertise to administer the assessment included within the Services.

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) Your and Your employees’, partners’, and independent contractors’ use of the Service; (iii) Your illegal behavior or conduct with respect to the Services or the Platform; (iv) Yours or Your partners’, independent contractors’, and End User(s)’ use of the Platform or PresenceLearning Property in an inappropriate manner or 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.

DISCLAIMER 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.

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 THE PLATFORM.

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. The Sections entitled Content Ownership, Proprietary Rights, Indemnification, and Limitation on Liability will survive expiration or termination of any Subscription Term or these Terms.

Assignment. You may not assign or otherwise transfer Your rights and obligation under these Terms, in whole or in part, without PresenceLearning’s 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 anything to the contrary contained within these Terms, in the event of Your or Your employees, partners, or End User(s) unauthorized access to or use of the Services 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, M1, New York, NY 10018, Attn: Legal Department or via email at legal@presencelearning.com. To You: 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.