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MindWise Innovations License Agreement

THIS MINDWISE INNOVATIONS LICENSE AGREEMENT (THIS “AGREEMENT”) CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN MINDWISE INNOVATIONS, A DIVISION OF RIVERSIDE COMMUNITY CARE, INC. (“MINDWISE”), AND THE ENTITY OR ORGANIZATION (“CUSTOMER”) IDENTIFIED IN THE ELECTRONIC ORDER FORM COMPLETED BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT (THE “ELECTRONIC ORDER FORM”) GOVERNING CUSTOMER’S ACCESS TO AND USE OF THE SERVICES AS DEFINED HEREIN. MINDWISE AND CUSTOMER ARE EACH REFERRED TO HEREIN AS A “PARTY” AND, COLLECTIVELY, AS THE “PARTIES.”

PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE “I AGREE” BUTTON FOLLOWING THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS READ, UNDERSTOOD AND AGREE TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT WITHOUT LIMITATION OR QUALIFICATION AND REPRESENTS THAT CUSTOMER HAS ADEQUATE POWER AND LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT OR DOES NOT UNDERSTAND THESE TERMS, CUSTOMER MUST CLICK THE “I DO NOT AGREE” BUTTON AND IMMEDIATELY CEASE ALL USE OF THE SERVICES.

1. Service Order

1.1  Services. MindWise shall furnish to Customer access to certain of MindWise’s web-based services, as set forth in the Electronic Order Form (the “Services”). Such Services shall be provided in accordance with the terms and conditions of this Agreement and the Electronic Order Form and shall be invoiced and paid for as described in Section 3 of this Agreement.

2. License Grant; Restrictions

2.1  License Grant. Subject to the terms and conditions of this Agreement, MindWise hereby grants to Customer the limited, non-exclusive, revocable, non-transferrable, non-sublicenseable right and license during the Term (as defined herein) to access and use the Services solely for the personal use of Customer’s Authorized Users (as defined herein) as expressly set forth in the Electronic Order Form.

2.2  Restrictions. Except for the limited rights to use the Services as expressly provided herein, nothing in this Agreement or any course of dealing in connection herewith grants or implies to Customer, its Authorized Users or any other third party any license or other right, in whole or in part, to: (i) sell, rent, lease, sublicense or otherwise transfer or distribute the Services (in whole or in part) or any copies thereof; (ii) modify, translate, reverse engineer, reverse assemble, reverse compile, decompile or disassemble the Services (regardless of whether applicable law may permit such activity); (iii) create or prepare derivative works based upon the Services; (iv) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Services; or (v) show, demonstrate or display the Services to any third party. Customer shall use the Services in compliance with all applicable laws and regulations and in a manner that does not infringe or otherwise violate the intellectual property, proprietary or privacy rights of MindWise or any third party.

2.3  Authorized Users. The license rights granted by MindWise to Customer pursuant to Section 2.1 of this Agreement shall extend to certain end users authorized by Customer as defined in Customer’s Electronic Order Form (“Authorized Users”) solely for each Authorized User’s personal use, provided that Customer shall ensure that each Authorized User shall comply with the terms and conditions of this Agreement and any applicable terms of use or similar documents made available on MindWise’s website, as may be updated at any time in MindWise’s sole discretion. Customer shall not, and shall not enable or otherwise authorize any third party to, remove any copyright or other proprietary notices from the Services. Customer acknowledges and agrees that in using or authorizing the use by Authorized Users of the Services, Customer acts solely at its own risk and as between the Parties, Customer shall have sole liability and responsibility under and in connection with other agreements entered into by it, including, without limitation, in respect of any warranties given or indemnification obligations undertaken in or pursuant to such agreement, and shall indemnify, defend and hold harmless MindWise from and against any and all Loss (as defined herein) asserted against MindWise by Customer’s Authorized Users or others arising under, in connection with, or by virtue of any such agreements or activities.

2.4  Delivery and Acceptance. MindWise shall deliver to Customer a unique URL (the “Unique URL”) that may be used by Customer and its Authorized Users to access and use the Services. Customer is and shall be solely responsible for providing the Unique URL to its Authorized Users and maintaining and managing access to the Unique URL. Notwithstanding anything in this Agreement to the contrary, MindWise shall have the right in its sole and absolute discretion to accept or reject any order for Services placed by a prospective Customer through an Electronic Order Form. MindWise shall not be deemed to have accepted any order for Services, and MindWise shall have no obligations to any prospective Customer under this Agreement or otherwise, unless and until MindWise delivers to customer the Unique URL.

3. Charges

3.1  Rates and Invoicing. Customer shall pay MindWise a flat fee in the amount set forth in the Electronic Order Form for all Services delivered by MindWise to Customer during the Term. Amounts due to MindWise shall be paid by Customer following Customer’s receipt of an invoice for such Services from MindWise by the date indicated in the invoice.

3.2  Taxes. Customer shall be responsible for payment of all state and/or local sales, use and/or other applicable taxes, however designated, with respect to this Agreement, the Services rendered thereunder, the use of such Services or any end product resulting therefrom. If any taxes not invoiced are subsequently levied, charged retroactively or otherwise determined to be due, such taxes shall be the responsibility of Customer and shall be paid by Customer.

4. Data

4.1  Aggregated Data. The Parties acknowledge and agree that MindWise shall have the right to collect, extract, compile, analyze, use and commercialize any information or data, on an aggregated, de-identified, anonymized and non-personally identifiable basis, resulting from Customer’s or its Authorized Users’ use of the Services (collectively, “Aggregated Data”). Customer hereby grants to MindWise the worldwide, non-exclusive, transferable, royalty-free, perpetual, irrevocable right and license (with right to sublicense) to use, reproduce, electronically distribute, store, process and display the Aggregated Data for any purpose. Customer acknowledges and agrees that the Aggregated Data is MindWise’s Confidential Information.

5. Proprietary Rights; Confidentiality

5.1  Ownership. MindWise retains all right, title and interest in and to the Services including, but not limited to, all Intellectual Property Rights (as defined herein) and Confidential Information therein. For purposes of this Agreement, “Intellectual Property Rights” means MindWise’s worldwide and common law rights associated with: (i) inventions, including patents, patent applications and statutory invention registrations or certificates of invention, and any divisions, continuations, renewals or re-issuances of any of the foregoing; (ii) trademarks, service marks, domain names, trade dress, logos, and other brand source distinctions; (iii) copyrights and works of authorship, including, but not limited to, the Services; (iv) trade secrets and know-how; and (v) other intellectual property rights of any type throughout the world. All Intellectual Property Rights and other rights not expressly granted pursuant to the terms of the Agreement are hereby expressly reserved by MindWise.

5.2  Confidentiality. Each Party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other Party, including, without limitation, data, preliminary works, concepts, business models, intentions, plans, contacts, relationships, financial arrangements or information, contracts, sales, installations, product details or demonstrations (“Confidential Information”). Each Party, its agents and employees (including any Authorized Users) shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any person, and shall not use any Confidential Information except as permitted under or as may be necessary to perform its obligations under this Agreement or as may be required by a court or governmental authority of competent jurisdiction. Notwithstanding the foregoing, Confidential Information shall not include any information that becomes publicly known through no fault of the receiving Party, or is otherwise properly received from any person other than a Party without an obligation of confidentiality.

6. Indemnification

6.1  By Customer. Customer shall indemnify, defend and hold harmless MindWise and its officers, directors, managers, members, agents, employees, representatives, successors and assigns from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) (collectively, “Loss”) arising in any manner out of or in connection with this Agreement or MindWise’s Services hereunder, to the extent that such Loss results from or arises out of Customer’s: (i) breach of any representation, warranty or covenant set forth in this Agreement; (ii) unauthorized use of the Services or MindWise’s Confidential Information; (iii) use, operation or combination of the Services on or with any third party products, programs, data, equipment, hardware or documentation; (iv) provision of information or data to MindWise; (v) gross negligence or willful misconduct in connection with this Agreement; or (vi) failure to comply with applicable laws, regulations or standards.

7. Disclaimer of Warranties; Limitation of Liability

7.1  DISCLAIMER. THE PARTIES MUTUALLY ACKNOWLEDGE AND AGREE THAT THE SERVICES (INCLUDING THE RESULTS AND OUTCOMES THEREOF) ARE PROVIDED BY MINDWISE “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTY OF ANY KIND. MINDWISE DOES NOT WARRANT THAT THE SERVICES SHALL BE VIRUS FREE OR THAT THE USE OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER AGREES THAT MINDWISE DOES NOT ASSURE OR GUARANTEE ANY PARTICULAR RESULT OR OUTCOME. MINDWISE MAKES NO REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, WITH RESPECT TO THE SERVICES OR ANY MATERIALS FURNISHED, AND ALL WARRANTIES AND CONDITIONS ARE EXPRESSLY DISCLAIMED. CUSTOMER’S EXPRESS REMEDIES SET FORTH HEREIN ARE EXHAUSTIVE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DESCRIPTIONS CONTAINED IN THE ELECTRONIC ORDER FORM TO THIS AGREEMENT DO NOT CONSTITUTE A WARRANTY.

7.2  NO INDIRECT DAMAGES. IN NO EVENT SHALL MINDWISE BE LIABLE TO CUSTOMER OR ANY AUTHORIZED USER OR THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES FOR LOST PROFITS, INTERRUPTION OF BUSINESS, LOSS OF TECHNOLOGY OR LOST DATA, HOWEVER ARISING, WHETHER UNDER THEORIES OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF MINDWISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.3  Limitation of Liability. Without limitation on any other provision hereof, Customer agrees that MindWise’s total aggregate liability hereunder for any cost, loss or damage, including liability for breach of warranty, negligence, strict liability in tort, or otherwise, regardless of form of action, shall be limited to the amounts actually paid by Customer to MindWise hereunder during the three (3) months preceding the time that the cause of action arose. Customer agrees that the foregoing shall be its sole remedy and expressly waives all others. No action, regardless of form, arising out of the transactions under this Agreement may be brought by Customer more than twelve (12) months from completion of the Services, unless the applicable statute of limitations provides a shorter period, in which case such shorter period shall apply.

8. Term and Termination

8.1  Term. This Agreement shall be effective as of the date on which MindWise delivers the Unique URL (the “Effective Date”) and shall continue in full force and effect thereafter for a period of one (1) calendar year, unless earlier terminated under the provisions of this Agreement (the “Term”).

8.2  Termination for Breach. Either Party shall have the right to terminate this Agreement upon the material breach of the other Party, which breach has remained uncured for a period of thirty (30) days after the receipt of written notice thereof from the non-breaching Party. Notwithstanding any language to the contrary in this Agreement, MindWise shall have the immediate right to terminate this Agreement due to any unauthorized use of the Services or any Confidential Information. In such event, Customer shall pay one hundred percent (100%) of the aggregate outstanding amount due, if any, pursuant to this Agreement.

8.3  Effect of Termination. Upon termination of this Agreement: (i) the license granted hereunder and all other provisions of this Agreement shall terminate and Customer and its Authorized Users shall immediately cease using the Services and any Confidential Information; and (ii) Customer shall promptly remove any and all Services and Confidential Information from its technical and/or cloud environment, destroy any and all hard copies thereof and, within thirty (30) days of the date of termination, certify to MindWise in writing such removal and destruction. The Parties acknowledge and agree that MindWise shall retain its entire right, title and interest in and to all Aggregated Data following termination of this Agreement.

9. General

9.1  Relationship of the Parties. Neither Party shall be deemed by operation of this Agreement or otherwise to be an agent or representative of the other Party for any purpose hereunder whatsoever. The Parties shall at all times be considered independent contractors. Neither Party shall have any right or authority to assume, create, or incur any liability or obligation of any kind in the name of the other Party.

9.2  Entire Agreement. This Agreement, together with the Electronic Order Form, sets forth the entire agreement and understanding of the Parties with respect to the subject matter hereof. All amendments and modifications to this Agreement shall be made by a written document signed by both Parties. The terms and conditions of this Agreement shall prevail over and govern the Electronic Order Form in the event of any conflict, unless otherwise expressly agreed in writing on the Electronic Order Form, explicitly referring to the Section of the Agreement to be amended.

9.3  Assignment and Transfer. Customer shall not assign or transfer all or any of its rights, benefits and obligations under this Agreement without the prior written consent of MindWise. MindWise shall have the right to freely assign or transfer all or any of its rights, benefits and obligations under this Agreement without the prior written consent of Customer.

9.4  Notices. Any notice given by one Party to the other shall be deemed properly given if specifically acknowledged by the receiving Party in writing or when delivered to the recipient by hand, fax, e-mail, or special courier during normal business hours to Customer at the address provided by Customer in the Electronic Order Form and to MindWise at the address identified below (or such other address as may be notified in writing from time to time by either Party):

(a) if to MindWise, to:

MindWise Innovations, a division of Riverside Community Care, Inc.
270 Bridge Street, Suite 205
Dedham, MA 02026
Attn: ____________________
Email: ___________________

9.5  Remedies and Waivers. No failure to exercise, nor any delay in exercising, on the part of either Party, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.

9.6  Partial Invalidity. If, at any time, any provision hereof is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, the legality, validity or enforceability of the remaining provisions shall in no way be affected or impaired thereby. The invalid provision shall be replaced by a valid one, which achieves to the extent possible and with the least modification the original purpose and commercial goal of the invalid provision.

9.7  Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without reference to its conflict of laws principles. Any action, claim or proceeding arising out of or relating to this Agreement shall be brought in the appropriate court located in Boston, Massachusetts. The Parties hereby consent to the exclusive jurisdiction of such court in any such action, claim or proceeding and submit to such jurisdiction. The Parties shall comply with all applicable laws, statutes, ordinances, regulations, orders, judgments, and decrees in performing their respective obligations pursuant to this Agreement.

9.8  Headings and Drafter. Headings are used for the purposes of references only and shall not affect the interpretation of this Agreement. Neither Party shall be deemed the drafter of this Agreement, which Agreement shall be deemed to have been jointly prepared by the Parties. If this Agreement is ever construed, whether by a court or by an arbitrator, such court or arbitrator shall not construe this Agreement or any provision hereof against either Party as drafter.

9.9  Counterparts. This Agreement may be executed by the Parties in one or more counterparts, any of which may be delivered in electronic format, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

9.10  Survival. The Parties agree that their respective rights, obligations and duties which by their nature extend beyond the termination of this Agreement shall survive any termination.

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