End User License Agreement

            

This End-User License Agreement (the “Agreement”) is entered into by and between Kennebunk Counseling, LLC, d/b/a Balanced Card Sorts, a Maine limited liability company and creator of the Balanced Card Sorts Products (“Company”) and the school district, college, or university that intends to purchase one or more of the Balanced Card Sorts Product(s) for use by its personnel with its students through the Company’s website (the “Licensee”). Each of the Company and the Licensee may be referred to herein as a Party and collectively as the Parties.

LICENSEE SHALL BE DEEMED TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT BY EITHER CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT OR BY FURNISHING PAYMENT FOR ONE OR MORE BALANCED CARD SORTS PRODUCT(S).  BY ACCEPTING THIS AGREEMENT, LICENSEE IS LEGALLY BOUND BY ALL OF ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF THE SCHOOL DISTRICT, COLLEGE, OR UNIVERSITY YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SAID DISTRICT, COLLEGE OR UNIVERSITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, DO NOT AGREE WITH THESE TERMS AND CONDITIONS, OR DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT USE THE BALANCED CARD SORTS PRODUCT(S) OR PERMIT OTHERS TO DO SO.  IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE COMPANY WILL NOT AND DOES NOT LICENSE THE BALANCED CARD SORTS PRODUCT(S) TO LICENSEE AND LICENSEE MAY NOT PURCHASE OR OTHERWISE USE THE BALANCED CARD SORTS PRODUCT(S).

 DEFINITIONS

 “Balanced Card Sorts Product(s)” or the “Product(s)”: means the digital version of the Student Wellness Card Sort, the Student Career Values Card Sort, and/or the Work-Life Balance Assessment available through the Company’s website https://sorts.balancedcardsorts.com/ and the accompanying PDF Report and Workbook produced following a Student’s completion of an individual digital Student Wellness Card Sort, Student Career Values Card Sort, and/or Work-Life Balance Assessment. The digital Student Wellness Card Sort and accompanying PDF Report and Workbook aids students in clarifying their mental health and wellness needs and goals and accessing needed resources. The Student Career Values Card Sort and accompanying PDF Report and Workbook guides students in understanding and articulating their career and work-life balance values and aligning them with their career choices. The Work-Life Balance Assessment and accompanying PDF Report and Workbook supports employees in defining their personal and professional priorities and setting related goals. 

  “Access Code”: means the unique digital code generated and provided by the Company to the Licensee to provide to Students to give them access to the digital Product(s). Access Codes are available in two forms: i.) an “Unlimited Use, Digital Access Code”: a digital code purchased for a flat-fee with an unlimited number of digital Product uses during a one-year term with the option to renew each subsequent year, and ii.) a “Bulk, Multi-use Digital Access Code”: a code with a pre-set number of purchased Product uses, with the option to re-fill the code with additional Product uses if needed.

 “Student” or “Students”: means a student or students attending school within the school district, college, or university which has purchased the Product(s);

“Personnel”: means officers, employees, counselors, contractors (including subcontractors and their employees) and agents of the Licensee who are authorized by the Licensee to provide Students with access to the Product(s) in accordance with the terms of this agreement.

 PURPOSE

The purpose of this Agreement is to define the terms and conditions under which the Company shall grant to the Licensee the right to access and use the Product(s).  Licensee is allowed to provide its Personnel and Students with the benefits of this Agreement, and, in consideration thereof, Licensee guarantees the performance of and compliance with all terms of this Agreement by its Personnel and Students.

BALANCED CARD SORTS LICENSE RIGHTS; LIMITATION ON SCOPE OF LICENSE

Subject to and conditioned upon Licensee’s strict compliance with all of the terms and conditions contained herein, the Company hereby grants to the Licensee and its Personnel a non-exclusive, non-transferable, non-sublicensable limited license and right to use the Balanced Card Sorts Product(s) (including the associated unique digital Access Code) solely and directly for the purpose of providing access to, and use of the Product(s) by Students in connection with programming provided for or arranged by the Licensee or its Personnel for the benefit of Students. The license and right to use granted to the Licensee herein shall be limited to the number of individual Product(s) purchased by the Licensee at the time of sale of the Product(s).

The Parties acknowledge and agree that the Licensee and its Personnel shall only use the Product(s) in connection with programming provided for or arranged by the Licensee or its Personnel for the benefit of Students. The Licensee shall only access, and cause its Personnel and Students to access the Product(s) through the Company’s website and using the unique Access Code provided by the Company upon receipt by the Company of payment for the right to access the Product(s). The Licensee and its Personnel shall not copy, reproduce, or redistribute, in any form, any or all of the Product(s) for any purpose, except as expressly provided for in this Article 3, and shall not use any part of the Product(s), and marks or depictions related thereto, unless such use is directly a result of a Student’s completion of the Product(s) following receipt of an unique Access Code from the Licensee or its Personnel.

 ARTICLE 4 –            Conditions to Use

In order to ensure the quality and effectiveness of the use of the Product(s) by the Licensee and its Personnel with the Students of the Licensee, and to protect the reputation and the goodwill engendered by Balanced Card Sorts and the Company, and in consideration for the Company’s agreement to license the Product(s) to the Licensee, the Licensee and its Personnel shall comply with and abide by the following terms and conditions:

The Licensee and its Personnel shall utilize the Product(s), including the PDF Report and Workbook, with Students in a competent manner, and to the extent applicable, in a manner consistent with professional standards applicable to the Personnel providing or administering the Product(s) to Students; and

The Licensee and its Personnel shall not utilize the Product(s) in a manner that violates applicable law or may give rise to a claim of discrimination against Licensee, its Personnel or the Company, or create the appearance of discrimination on the part of the Licensee or its Personnel against a Student.

ARTICLE 5 –            OWNERSHIP

The Company holds all right, title, and interests, including but not limited to intellectual property rights (which include, but are not limited to, patent, copyright, trademark, and trade secret rights), to the Balanced Card Sorts Product(s), its documentation and all related information and content. Licensee, its Personnel, and Students have no rights in the Balanced Card Sorts Product(s) other than those expressly granted under this Agreement, and in particular, under Article 3 above. Licensee shall not, directly or indirectly, for the benefit of Licensee or any other person or entity and whether for compensation or free of charge  i) reproduce, by any means whatsoever, in whole or in part, the Product(s) and related documentation, ii) disclose, publish or commercialize, in whole or in part, the Product(s), iii) transfer, transmit, communicate, in whole or in part, the Product(s) for the benefit of a third party, including by loan, hiring out or transfer, iv) adapt, modify, transform, arrange in whole or in part any of the Product(s) in order to create a similar Product, in any form, v) create any transcription or translation into other languages, or any  modification, even in part, of the Product(s) or the associated documentation without the prior written approval of the Company. Nor shall Licensee attempt to do any of the foregoing.  Licensee shall ensure that its Personnel and Students respect all the conditions specified in this section and, more generally, in this Agreement. Licensee undertakes to preserve all intellectual property right notices and trademarks with respect to the Balanced Card Sorts Product(s) and its documentation.

 ARTICLE 6 –            Representations and Warranties

Each Party represents and warrants that it has full power (corporate or otherwise) and authority to enter into and perform its obligations under this Agreement, and all actions necessary to authorize the execution, delivery, and performance of this Agreement have been taken by such Party;

The Company represents and warrants that, as of the Effective Date, Company owns all right, title, and interest throughout the world in and to the Product(s), which Product(s) has intrinsic value.

ARTICLE 7 –            WARRANTY DISCLAIMER

THE PRODUCT(S) AND ALL RELATED DOCUMENTS AND CONTENT ARE PROVIDED TO LICENSEE “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  ALSO TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PRODUCT(S) AND ALL RELATED DOCUMENTS AND CONTENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE, EXCEPT FOR THOSE WARRANTIES EXPRESSLY PROVIDED HEREIN.

ARTICLE 8 –            LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR ANY PECUNIARY LOSS) HOWEVER CAUSED AND ON ANY LEGAL OR EQUIPTABLE THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY BREACH OF CONDITION(S) OR FUNDAMENTAL TERM(S) OR FOR A FUNDAMENTAL BREACH(S).  IN ANY CASE, THE COMPANY’S ENTIRE LIABILTY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY LICENSEE FOR THE PRODUCT(S).  THIS LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL SUCH PARTY’S EXPENDITURE’S BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT.

ARTICLE 9 –            CONSIDERATION; Access

 9.1       Consideration. As full consideration for the rights and license granted to the Licensee hereunder, the Licensee shall pay an amount determined at the time of purchase calculated based upon the number of individual digital Product(s) (including Unlimited Use Digital Access Codes) desired by the Licensee at the time of purchase (the “License Fee”). 

 9.2       Access. Following receipt of the License Fee by the Company, the Licensee shall receive a unique Access Code within one (1) business day that may be used by the Licensee, its Personnel and Students to create a unique account for the purposes of completing an individual digital card sort Product(s). The use of the Product(s) requires access to the internet, and the Company is not responsible for providing internet access to the Licensee, its Personnel or Students.  

 ARTICLE 10 –          TERM; TERMINATION

10.1     Term. The term of this Agreement shall commence upon the Licensee’s receipt of a unique Access Code by electronic mail (the “Effective Date”) and shall end automatically after the Licensee, its Personnel or Students, have completed the number of individual assessments acquired at the time of purchase, or in the case of an Unlimited Use Digital Access Code exactly one year after the term of this Agreement commences, unless earlier terminated pursuant to the terms of this Agreement (the “Term”).

10.2     Termination. The occurrence of any one or more of the following events shall constitute a default under this Agreement and shall cause an automatic termination of this Agreement:

If the Licensee, its Personnel or Students default under the terms of this Agreement for any reason; any wrongdoing or conduct by the Licensee, Personnel or Students, that would impact the business reputation of the Company or its Members;

10.3     Notwithstanding the foregoing, or any other term of this Agreement, the Company may terminate this            Agreement at any time without prior notice if the Company determines in its sole discretion using its good faith business judgment that the actions or failure to act by the Licensee or its Personnel creates a risk of harm to any Student or liability on the part of Company, in which case, termination will be effective immediately.

10.4     Upon termination, the Licensee and its Personnel shall cease using the Product(s) and its Access Code to the Product(s) shall be terminated.  All payments made by the Licensee for the Product(s) are non-refundable upon termination. If this Agreement so terminates, the Company may pursue at law and at equity, all lawful rights it has hereunder.

10.5     Notwithstanding anything else contained herein, the provisions of Articles 5, 7, 8, 11, and 12 shall survive expiration of the Term or termination of the Agreement.

ARTICLE 11 –          CONFIDENTIALITY

Subject to the Data Collection and Use provisions of Section 14.2 herein, each Party agrees that it will not disclose the confidential information of the other Party and will use such confidential information only for the purpose of performing its obligations under this Agreement.  Confidential information includes all non-public information relating to a Party’s business strategies and plans, operations, financial affairs, actual and prospective Licensees, intellectual property, service providers and the terms of this Agreement and includes all non-public information that is commonly understood to be confidential, whether or not that information is marked as confidential and whenever provided to or obtained by the other Party.  Each Party shall be responsible in the event of a breach of this obligation by an employee of that Party.  Each Party will promptly inform the other Party if it becomes aware of a breach of its obligations under this Article 11 and will take prompt remedial actions to limit the consequences of such a breach.

Balanced Card Sorts and its digital Products do not collect Student education records. In order for Students to access a digital Product using the Access Code provided to them by the Licensee, the Student will be directed to the website and asked to enter their name and their email address, as well as a password of their choice. This information is used to give Students access to the digital card sort Product, to access their PDF Report and Workbook, and to email them a back-up copy of their PDF Report and Workbook. The Company will not share Student names, email addresses, or passwords with any third parties for any reason.

In the event Company is granted access to personally-identifiable information contained in Student education records pursuant to this Agreement and providing the Product(s), the Company shall be considered a school official with legitimate educational interests in and to such information in accordance with the Family Educational Rights and Privacy Act of 1974 ( (20 U.S.C. § 1232g; 34 CFR Part 99) (“FERPA”). The Company agrees to comply with all applicable federal and state laws restricting the access, use, and disclosure of such student information, and shall take no action with respect to such information that would intentionally cause Licensee to violate its obligations under federal or state law related to such information, including, but not limited to, FERPA. The Company shall not access and/or use such information except to perform services pursuant to this Agreement or as otherwise permitted by state and federal law. The Company also agrees that it is under the direct control of Licensee with respect to the use and maintenance of FERPA-protected information shared by Licensee with the Company.

ARTICLE 12 –          INDEMNIFICATION

The Licensee shall defend, indemnify, and hold the Company harmless against any damage, liability or expense, including reasonable attorney’s fees and court costs, incurred by the Company arising out of the Licensee, its Personnel, or Employee’s use of the Product(s).

ARTICLE 13 –          Notices

Any notice which either party is permitted or required to give to the Company shall be deemed to have been given and received, and to be effective for all purposes when delivered personally, or when sent by certified mail or by email, in each case to the address listed below (or if notice of a new address is provided in accordance with this Agreement, the new address):

To the Company:                    Kennebunk Counseling, LLC

                                                62 Portland Road, Suite #44

                                                Kennebunk, ME 04043

                                                Attn: Anush Hansen  

 

With a copy to:                       Elek A. Miller, Esq.

                                               Drummond Woodsum & MacMahon

                                               84 Marginal Way

                                               Suite 600

                                               Portland, ME  04101

Notices shall be effective if addressed to the last known address of the individual/party to whom such notice is being sent.

ARTICLE 14 –          MISCELANEOUS 

 14.1     No Agency or Counseling Relationship. Nothing contained herein shall be deemed to make either party an agent or legal representative of the other for any purpose whatsoever. The use of the Product(s) by the Licensee, its Personnel or Students, shall in no way be deemed to create a therapeutic, counseling or other special relationship between the Company and its owners, employees, or agents, and Licensee and its Personnel or Students.

 14.2    Data Collection and Use. Information Licensee, its Personnel or Students provide to the Company and information and data that the Company otherwise collects about Licensee, its Personnel, or Students, including, but not limited to, information provided through purchase and/or use of the Products(s), is subject to the terms of the Company’s Privacy Policy, which are available through a link on the Company’s website and incorporated into this Agreement by reference.  The Company reserves the right to update the Privacy Policy from time to time, and Licensee shall visit the Company’s website periodically to review the most current version.

 14.1     Assignment. The Licensee may not assign, lease or sublease, sublicense or in any other manner transfer to any person or other organization its rights under this Agreement, except as provided for herein. The Company may assign its rights under this Agreement and will provide notice to the Licensee following the close of such a transaction.

 14.2     Amendment. This Agreement may not be amended except by written agreement between the Company and Licensee.

 14.3     Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Maine.  Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement must be brought in the courts of the State of Maine in Cumberland County, and each of the parties consents to the jurisdiction of such courts in any such action or proceeding and waives any objection to venue laid therein.

 14.5     Benefit. This Agreement shall be binding upon and inure to the benefit of the Company and Licensee and their respective heirs, personal representatives, successors and assigns.

 14.6     Entire Agreement.  This Agreement contains the entire agreement between the parties and supersedes all prior agreements or understandings, written or otherwise, which are expressly hereby agreed to be of no further force or effect. 

 14.8     Severability. If any provision of this Agreement or its application to any party or circumstances shall be declared void, illegal, or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law.  In such event, the parties shall use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.

 14.9     Waiver. The waiver by either party hereto of any breach of any term, condition, or provision of this Agreement, or the failure by either party to enforce any term, condition, or provision of this Agreement, shall not operate or be construed as a waiver of any other term, condition, or provision or of any subsequence breach of the same term, condition, or provision.