PROVIDER AGREEMENT

DEFINITIONS

“Customer” means any person utilizing the Platform as an end-user who is provided access to the Platform by the Provider.   agreeing to the following Agreement and its included terms and conditions.

“Customer Account” means the information and payment terms related to Customer’s utilization of Account Access to the Platform.

“Customer Fees” means the amount of money paid by Customers to Provider in order to provide Customer with access to the Platform in accordance with the Customer Terms and Conditions.

“Customer Terms and Conditions” means the agreement entered into by
Customers that controls each Customer’s utilization Platform and the rights and obligations of Licensor, Provider and Customer related to each Customer’s use thereof.

“Licensor” means CerebroCore LLC.

“Platform” means the website, software, hardware and other online services owned and developed by Licensor that provides online interactive exercises and games.

“Licensor’s Platform Policy” means the rules, policies and protocols that control Provider’s use of the Platform ,including but not limited to all policies regarding Customer Accounts, the disclosure and use of Customer information, and payment of any and all fees related to the Platform.

“Provider”  or “You” means the individual or entity entering into this Agreement with Licensor granting a non-exclusive license to utilize the Platform commercial puposes and resell access to the Platform to third-party customers.

“Provider Account” means the information and payment terms related to Provider’s utilization of the Platform, including but not limited to the offering of access to Customers.

“Subscription Term” means the period of time beginning when Provider first provides Customer with access to the Platform and ending upon Customer’s removal of access by Provider based upon the terms and conditions set forth in the Agreement.

1. Platform Subscription.
   • Appointment as Provider of CerebroCore Platform.  Subject to the terms of the Agreement (and any applicable Service Specific Terms incorporated hereto by reference), Licensor hereby grants to Provider a non-exclusive, non-assignable, non-transferable, limited term, right to access and use the Platform during the term of this Agreement in compliance with the terms and conditions set forth herein. As a Provider, You may offer your Customers access to utilize the Platform for a monthly fee in accordance with this Agreement and in a manner consistent with Licensor’s Platform Policy.
   • Customer Services. As part of your Provider subscription, the Platform will provider services to allow Provider to offer Customer Accounts to Customer’s in exchange for a subscription fee, to be determined by the Provider, in Provider’s sole discretion
   • Provider Account. Provider will be given access to a Provider Account that will allow Provider to manage its Customer Accounts, Customer access to the Platform, Customer Fees and each Customer’s utilization of the Platform.
   • Term. This Agreement will be applicable at all times during Provider’s subscription to the Platform in accordance with this Agreement.  The terms and conditions of this Agreement shall survive any expiration or termination of Provider’s subscription where applicable, including but not limited to those potions of this Agreement related to indemnification, proprietary rights, confidentiality and privacy.
   • Fees. Provider will pay to Licensor the subscription fees charged by Licensor for Provider access to the Platform.
   • Customer Access to Platform. The Platform will provide access to Customers and provide all related services thereto, including Customer payment services, either directly or through third parties as directed by the Licensor in Licensor’s sole discretion. Provider will be provided access to Customer information related to Customer’s subscription and each Customer’s utilization of the Platform, including but not limited to results generated by Customer’s utilization of exercises and games provided through the Platform.  Provider will be paid the Customer Fees in accordance the terms of the third-party Customer payment services provider and Provider shall be responsible for any costs incurred in relation thereto.
   • Compliance with Licensor Platform Policy. Including Provider’s obligation to not misrepresent the Platform or the services provided therein in any way that is inconsistent with the Licensor Platform Policy, this Agreement or any Customer Terms and Conditions.
2. Platform Access.
   • Subject to the terms of the Agreement (and any applicable Service Specific Terms incorporated hereto by reference), Provider hereby grants to Customer a non-exclusive, non-assignable, non-transferable, limited term, right to access and use the Platform during the Subscription Term solely by Authorized Users for Customer’s internal business purposes.
   • Provider is solely responsible for managing the Provider Account and for controlling access to and use of the Platform.
   • THE PLATFORM IS NOT INTENDED FOR THE PROVISION OF MEDICAL OR CLINICAL TREATMENT OR FOR THE PURPOSE OF PROVIDING ANY KIND OF MEDICAL OR OTHER HEALTH RELATED DIAGNOSIS.
3. Privacy and Security.
   • Protecting and safeguarding any information you provide through the Platform is extremely important to us. Information about our security and privacy practices can be found on our Privacy Policy available at (INSERT HYPERLINK TO PRIVACY POLICY LANGUAGE )(The ‘Privacy Policy’).
   • BY AGREEING TO THIS AGREEMENT AND/OR BY USING THE PLATFORM, YOU ARE ALSO AGREEING TO THE TERMS OF THE PRIVACY POLICY. THE PRIVACY POLICY IS INCORPORATED INTO AND DEEMED A PART OF THIS AGREEMENT. THE SAME RULES THAT APPLY REGARDING CHANGES AND REVISIONS OF THIS AGREEMENT ALSO APPLY TO CHANGES AND REVISIONS OF THE PRIVACY POLICY.
4. Third-Party Content. The Platform may contain other content, products or services which are offered or provided by third parties other than Provider through is license with Licensor (“Third Party Content”), links to Third Party Content (including but not limited to links to other websites) or advertisements which are related to Third-Party Content. We have no responsibility for the creation of any such Third-Party Content, including (but not limited to) any related products, practices, terms or policies, and we will not be liable for any damage or loss caused by any Third Party Content.
5. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.
   • PROVIDER HEREBY RELEASE LICENSOR AND AGREES TO HOLD LICENSOR HARMLESS FROM ANY AND ALL CAUSES OF ACTION AND CLAIMS OF ANY NATURE RESULTING FROM USE OF THE PLATFORM, INCLUDING (WITHOUT LIMITATION) ANY ACT, OMISSION, OPINION, RESPONSE, ADVICE, SUGGESTION, INFORMATION AND/OR ANY OTHER CONTENT OR INFORMATION ACCESSIBLE THROUGH THE PLATFORM ANY AND ALL REPRESENTAITONS MADE TO THIRD PARTIES BY PROVIDER.
   • IT IS THE DUTY OF THE PROVIDER TO ASSESS THE APPROPRIATENESS OF PLATFORM FOR USE BY ITS CUSTOMERS.
   • YOU UNDERSTAND, AGREE AND ACKNOWLEDGE THAT THE PLATFORM IS PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, NON-INFRINGEMENT, SECURITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. THE USE OF THE PLATFORM IS AT YOUR OWN RISK. TO THE FULLEST EXTENT OF THE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED.
   • YOU UNDERSTAND, AGREE AND ACKNOWLEDGE THAT LICENSOR SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES.
   • YOU UNDERSTAND, AGREE AND ACKNOWLEDGE THAT LICENSOR’S AGGREGATE LIABILITY FOR DAMAGES ARISING WITH RESPECT TO THIS AGREEMENT AND ANY AND ALL USE OF THE PLATFORM WILL NOT EXCEED THE TOTAL AMOUNT OF MONEY PAID BY PROVIDER IN THE 6 MONTHS PERIOD PRIOR TO THE DATE OF ANY CLAIM.
   • If the applicable law does not allow the limitation of liability as set forth above, the limitation will be deemed modified solely to the extent necessary to comply with applicable law.
   • This section (limitation of liability) shall survive the termination or expiration of this Agreement.
6. Provider Representations and Warranties.
   • You hereby confirm that you are legally able to consent to utilize the Platform or have the consent of a parent or guardian, and that you are legally able to enter into a contract.
   • You hereby confirm and agree that all the information that you provided in or through the Platform, and the information that you will provide in or through the Platform in the future, is accurate, true, current and complete. Furthermore, you agree that during the term of this Agreement you will make sure to maintain and update this information so it will continue to be accurate, current and complete.
   • Provider agrees and commit not to violate any applicable local, state, national or international law, statute, ordinance, rule, regulation or ethical code in relation to your use of the Platform.
7. Indemnification. Provider will indemnify Licensor, defend Licensor, and hold Licensor harmless from and against any and all claims, losses, causes of action, demands, liabilities, costs or expenses (including, but not limited to, litigation and reasonable attorneys’ fees and expenses) arising out of or relating to any of the following: (a) Provider’s access to or use of the Platform; (b) any actions made with the Provider Account whether by Provider or a third-party; (c) Provider’s violation of any of the provisions of this Agreement; (d) non-payment for any of the services which were provided through the Platform; (e) Provider’s violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right. This clause shall survive expiration or termination of this Agreement.
8. Modifications, Termination, Interruption and Disruptions to the Platform.
   • Provider acknowledges and agrees that that Licensor may modify, suspend, disrupt or discontinue the Platform, any part of the Platform or the use of the Platform, whether to all Customers, certain Customers or to the Provider specifically, at any time with or without notice to Provider. You agree and acknowledge that Provider will not be liable for any of the aforementioned actions or for any losses or damages that are caused by any of the aforementioned actions.
   • The Platform depends on various factors such as software, hardware and tools, provided by either Licensor and or Licensor’s agents. Licensor makes commercially reasonable efforts to ensure the Platform’s reliability and accessibility. Provider acknowledges and agrees that that no platform can be 100% reliable and accessible.  There is no guarantee that access to the Platform will be uninterrupted or that it will be accessible, consistent, timely or error-free at all times.
9. Proprietary Rights.
   • All title, ownership, and right in and to the Platform, as well as any modifications or derivative works of the Platform (even if created by Provider, Customer or by an Authorized User), and any media or infrastructure on which the Platform is provided, all rights and title of such, remain with Licensor.
   • Noting in this Agreement shall be construed grant Provider any rights to or in patents, know how, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses to any portion of this Platform or any related products or services offered by Licensor.
10. Confidentiality. Provider agrees that all information, documentation and related materials disclosed to Provider by Licensor in connection with this Agreement and or Provider’s utilization of this Platform shall be maintained as strictly confidential, This provision shall survive expiration or termination of this Agreement and be continuing thereafter, provided that the foregoing shall not prohibit disclosure by either Provider of any materials that becomes publicly known (other than through the disclosure by Licensor) or any disclosure required by any applicable law or governmental authority.
11. Miscellaneous.
    • Governing Law. This Agreement shall be interpreted solely in accordance with the laws of the State of South Carolina excluding any rules governing choice of laws.
    • Venue. Provider irrevocably agree that the exclusive venue for any action or proceeding arising out of relating to this Agreement or Licensor’s relationship with Provider, regardless of theory, shall be the U.S. District Court for the District of South Carolina, or the state courts located in Beaufort County South Carolina. Provider irrevocably consent to the personal jurisdiction of the aforementioned courts and hereby waive any objection to the exercise of jurisdiction by the aforementioned courts.
    • THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN PROVIDER AND LICENSOR WITH RESPECT TO THE MATTERS SET FORTH HEREIN. PROVIDERS CONFIRM THAT IT HAS NOT RELIED UPON ANY PROMISES OR REPRESENTATIONS BY LICENSOR EXCEPT AS SET FORTH IN THIS AGREEMENT.
    • Modification. This Agreement may be modified from time-to-time by Licensor by providing written notice to Provider. Unless otherwise specified, all modifications shall be effective upon posting. Notwithstanding the foregoing, any modification that has a materially adverse effect on Provider will not be effective until the first full month after Provider is provided notice of such modification.  By using the Platform after the changes become effective, Provider agrees to be bound by such changes to the Agreement.
    • Headings. The paragraph headings in this Agreement are solely for the sake of convenience and will not be applied in the interpretation of this Agreement.
    • Survival. To clear any doubt, all clauses regarding limitations of liabilities and indemnification shall survive the termination or expiration of this Agreement.
    • Force Majeure. Neither party shall be deemed in default of this Agreement to the extent of non-performance of its obligations or attempts to cure any breach or delay of performance by reason of any act of God, fire, natural disaster, accident, act of government, strikes, terrorism (including cyber-terrorism), unavailability of material, telecommunications capacity, or the failure of any third party provider to supply goods or services associated with or comprising any valuation service hereunder unless such failure of any parties seeking the protection of this clause was materially created, extended or worsened by its conduct or negligence.
    • Severability. If any provision or provisions of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and any arbitrator or court shall attempt to enforce such provisions to the fullest extent of the law.
    • No License Granted. Nothing contained in this Agreement will be construed as an assignment of, granting or conferring any patent, copyright, trademark, or any other proprietary rights by license or otherwise, expressly, implied, or otherwise, for any invention, discovery or improvement made, conceived or acquired prior to or after the date of this Agreement.
    • It is understood and agreed that any ambiguities contained in this Agreement and any amendments thereto should not be presumptively construed against either party.

LAST UPDATED: September 23, 2021