PROFESSIONAL LICENSE AGREEMENT
1. Background of Agreement
(a) This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By selecting the correct box at the end of this Agreement and typing “I Agree” or otherwise signifying your acceptance, you accept this Agreement either for yourself or on behalf of your employer or the entity that is identified as the member account holder, and agree to be bound by its provisions. If you are accepting on behalf of your employer or the entity that is the member account holder, you represent and warrant that you have full legal authority to bind your employer or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept the Agreement and do not download the Content.
(b) In this Agreement: (i) “you” or the “Client” means you or, if you are accepting on behalf of your employer or member account entity, then “you” means that employer or entity and affiliates; (ii) “Circle + Bloom” or “we” means Circle and Bloom LLC, owner of the audio programs; (iii) “Content” means any music, words, scripts and other items included on our site and audio programs; (iv) “Patient” means individuals that you accept into your professional practice to treat; and (v) “Equipment” means audio hardware supplied by Circle + Bloom to you the Client and includes a digital audio player, headphones and an AC adapter on which the Content will play and Circle + Bloom will preload onto.
2. Standard License Terms
3. Permitted Standard License Uses
(a) You may use the audio programs on the supplied Equipment on that Equipment alone, and only at your professional facilities. Only one Patient may listen to the program at a time. There is no restriction on the number of patients that can listen to the program per month. If there is any doubt that a proposed use is a Permitted Use, you should contact Circle + Bloom’s at firstname.lastname@example.org for guidance.
4. Standard License Prohibitions
(a) Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section, the following are “Prohibited Uses” and you may not:
1. change the Content of our programs in any manner;
2. copy or load the Content on any other hardware device, including but not limited to another digital audio player;
3. give the Content to any person to use outside of your professional facilities;
4. to the extent that source code is contained within the Content, reverse engineer, decompile, or disassemble any part of such source code;
5. remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
6. sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement;
7. post a copy of the Content on a network server or web server for use by other users;
8. use or display the Content in an electronic format that enables it to be downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement;
5. Term of Agreement
(a) This Agreement is effective until it is terminated. You can terminate this Agreement by returning all Equipment to Circle + Bloom at anytime. Returns should be mailed to Circle + Bloom at 9 Bartlet Street, # 171, Andover MA 01810 and should be shipped using a method where you are able to track receipt. If the Equipment is not returned upon termination Circle + Bloom has the right to collect a one time payment in the amount of $175 for the purchase of the Equipment. Circle + Bloom may collect this amount due by charging the credit card on file, or other means as necessary. The Agreement also terminates without notice from Circle + Bloom if at any time you fail to comply with any of its terms, or have not kept up to date on your monthly license fee. Upon termination, you must immediately (i) cease using the Content for any purpose; (ii) return all Equipment to Circle + Bloom; and (iii) if requested, confirm to Circle + Bloom in writing that you have complied with these requirements.
(b) Circle + Bloom reserves the right to elect at a later date to revoke or amend the license granted by this Agreement and replace the Content with an alternative for any reason. Upon notice, sent to the address or contact information provided by you for your member account, or such other address as you may advise us in writing to use, from time to time, of such replacement, the license for the replaced Content immediately terminates for any products that do not already exist, and this license automatically applies to the replacement Content.
(c) Upon notice from Circle + Bloom, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of infringement of another’s right for which Circle + Bloom may be liable, you must immediately and at your own expense stop using the Content. Circle + Bloom shall provide you with replacement Content (which shall be determined by Circle + Bloom in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
6. Circle + Bloom Representations and Warranties
(a) Circle + Bloom warrants that: (i) your use of the Content in accordance with this Agreement and in the form delivered by Circle + Bloom will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and (ii) all necessary model and/or property releases for use of the Content in the manner authorized under this Agreement have been obtained.
(b) OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 7(a), THE CONTENT IS PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. CIRCLE + BLOOM DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE.
7. Circle + Bloom Indemnification and Limitation of Liability
(a) Provided that the Content is only used in accordance with this Agreement and you are not otherwise in breach of this Agreement and as your sole and exclusive remedy for breach of the representations and warranties set forth in Section 7 (a) above, Circle + Bloom shall, subject to the terms of Sections 8(b),(c),(d) and (e) defend, indemnify and hold harmless you, your parent, subsidiaries and affiliates and respective directors, officers and employees from all damages, liabilities and expenses (including reasonable outside legal fees), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that the possession, distribution or use of the Content by you is in breach of the representations and warranties set forth in Section 7(a) above. The foregoing states Circle + Bloom’s entire indemnification obligation under this Agreement.
(b) The indemnification set out in Section 8(a) above is conditioned on your prompt notification in writing to Circle + Bloom of such claim and our right to assume the handling, settlement or defense of any claim or litigation. You agree to cooperate with Circle + Bloom in the defense of any such claim or litigation and shall have the right to participate in such litigation at your sole expense. Circle + Bloom shall not be liable for legal fees and other costs incurred prior to the notice of the claim.
(c) IN NO EVENT SHALL CIRCLE + BLOOM OR ANY OF ITS AFFILIATES OR CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE.
(d) NOTWITHSTANDING ANY OTHER TERM HEREIN, CIRCLE + BLOOM SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFCATIONS MADE TO THE CONTENT BY YOU OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU.
(e) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF CIRCLE + BLOOM UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH YOU HAVE LICENSED THE SAME CONTENT, REGARDLESS OF THE FILE SIZE, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER AND THE OBLIGATION OF CIRCLE + BLOOM UNDER SECTION 8(a) SHALL BE LIMITED TO AN AGGREGATE OF TWO THOUSAND ($2,000) US DOLLARS. FOR GREATER CLARITY, CIRCLE + BLOOM’S LIABILITY TO YOU IN RESPECT OF THE CONTENT SHALL NOT EXCEED TWO THOUSAND ($2,000) US DOLLARS REGARDLESS OF THE NUMBER OF TIMES THAT YOU LICENSE THE SAME CONTENT FROM CIRCLE + BLOOM.
8. Your Indemnification
You agree to indemnify, defend and hold Circle + Bloom, its affiliates, its Content providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “Circle + Bloom Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Circle + Bloom Party as a result of or in connection with any breach or alleged breach by you or anyone acting on your behalf of any of the terms of this Agreement.
9. General Provisions
(a) Circle + Bloom’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
(b) This Agreement is personal to you and is not assignable by you without Circle + Bloom’s prior written consent. Circle + Bloom may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
(c) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
(d) You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Content, pursuant to this Agreement.
If you have concerns relating to this Agreement, please contact Circle + Bloom at email@example.com or via phone at (866) 237-2271.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF CIRCLE + BLOOM AGREEING TO PROVIDE THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND CIRCLE + BLOOM, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND CIRCLE + BLOOM RELATING TO THE SUBJECT OF THIS AGREEMENT.