Purchasing and Use Agreement
This form allows you to read and accept the Purchasing and Use Agreement for LifeStyle for Small Businesses, and submit payment for the first year of your annual subscription. This product is meant for organizations of up to 1,000 people. If you have more than 1,000 people in your organization, please contact us for enterprise pricing.
Please read the Purchasing and Use Agreement to accept.
THIS AGREEMENT, dated as of the date the Purchasing and Use Agreement (“Electronic Agreement Form”) was submitted electronically to Pro-Change (“Agreement Date”), is entered into by and between the organization/individual indicated on the Electronic Agreement Form (“Client”), and Pro-Change Behavior Systems, Inc., a Rhode Island corporation with a principal place of business located at 1174 Kingstown Road, Suite 101, South Kingstown, RI 02879 (“PCBS”).
WHEREAS, PCBS is a provider of interactive behavior change programs based upon the Transtheoretical model (“Programs”) delivered through PCBS’s website, www.prochangelifestyle.com (“Website”); and
WHEREAS, PCBS offers the suite LifeStyle for Small Businesses for organizations with less than 1001 users (the “Licensed Program”), which includes programs for Stress Management, Tobacco Cessation, Weight Management, Exercise, Healthy Eating, Responsible Drinking and the Health Risk Intervention; and
WHEREAS, Client wishes to license the Licensed Program for an organization size (“User Tier”) indicated on the Electronic Agreement Form, to make available to its employees/members/users through the Website.
NOW, THEREFORE, in consideration of the foregoing and the agreements and obligations hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
Client has selected the Licensed Program to be made available to Client’s employees/members/users (“Users”). PCBS shall grant to Users access to the Licensed Program through the Website utilizing a PCBS-issued organization code and self-designated usernames and passwords for each User. Unless deactivated by a User directly or at the request of Client, a User’s account shall remain active and shall count against the total number of available Users of the Licensed Program. For purpose of clarity, “deactivation” of a User account is a formal process; inactivity of a User shall not be considered “deactivation.”
a. Client shall annually pay PCBS the License Fees indicated on the Electronic Agreement Form. Fees are designated as “per User,” therefore each person who creates a username shall be deemed a “User” regardless of actual use of the Licensed Programs. Users shall not be permitted to share usernames.
b. Payment for the first “contract year” is due at time of accepting and submitting the Electronic Agreement Form, and then at the start of each new contract year. For purposes hereof, a “contract year” is the twelve (12) month period commencing on the date of this Agreement, and each twelve (12) month period thereafter.
c. If the maximum number of Users is met during a contract year, the next registered user will receive a message saying there is no longer availability for use of the Licensed Program. In such a case, Client will have the option to increase the number of potential Users by upgrading to the next User Tier and paying the cost difference therefore, pro-rated for the balance of the then current contract year. If Client upgrades to another User Tier, that tier, and the pricing therefore, shall be the applicable User Tier for the next contract year renewal.
d. Client will have the opportunity to update User Tier at the start of each new contract year; provided that, unless Client has provided written notice to PCBS not later than thirty (30) days prior to the end of the current contract year that Client would like to renew at a lower User tier, the User tier in effect at the end of any contract year shall be the User tier for the next contract year.
- Copyrights and Trademarks.
Client acknowledges and agrees that all rights, of any kind or nature, with respect to the Licensed Programs, the Website, any modifications, improvements, enhancements, revisions, upgrades and other changes thereto (whether made pursuant to the terms of this Agreement or otherwise), including Customization, and all other rights to and in the same, including, but not limited, to documentation, copyrights, and trade secret rights, belong solely to PCBS. Client further acknowledges and agrees that PCBS’s proprietary software upon which Licensed Programs operate, “TTMX,” and all Licensed Program source codes and documentation are subject to the proprietary rights of PCBS and are trade secrets of PCBS protected by applicable law. Client shall not assign, sublicense, pledge or otherwise transfer any rights granted Client herein, to any other party except as specifically contemplated by the terms of this Agreement for use of the Website and Licensed Programs by Users.
- Hosting Services.
PCBS shall host the Licensed Program.
- User Support.
PCBS shall provide support to Users Monday – Friday 9-5 Eastern time.
- Term and Termination.
The term of this Agreement shall be one year. After the initial term, this Agreement shall automatically renew on a year to year basis until either party provides the other with written notice of termination at least thirty (30) days prior to the expiration of the then current contract year.
a. Each Party (the “Recipient”) acknowledges that by virtue of entering into and performing under this Agreement, Recipient will be exposed to and have access to Confidential Information of the other Party or its affiliates (the “Discloser”). Unless the Recipient has obtained the express prior written consent of Discloser, which may be withheld in the Discloser’s absolute and sole discretion, under no circumstances whatsoever shall the Recipient at any time: (i) communicate to any individual(s), entity or entities (other than the Discloser) any Confidential Information; (ii) permit access by any individual(s), entity or entities (other than the Discloser) to any Confidential Information; or (iii) use any Confidential Information for the Recipient’s own account or for the account of any individual(s), entity or entities (other than the Discloser).
b. For purposes of this Agreement, “Confidential Information” shall mean (i) any financial, business, planning, software, operations, services, potential services, products, potential products, designs, technical information and/or know-how, formulas, production, purchasing, marketing, sales, personnel, customer, broker, supplier, or other information of the Discloser; (ii) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Discloser; (iii) any confidential information or trade secrets of any third party provided to the Recipient in confidence or subject to other use or disclosure restrictions or limitations; and (iv) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, which pertains to the Discloser’s affairs or interests or with whom or how the Discloser does business.
c. Nothing in this Agreement shall prohibit or limit either party’s use of information (i) previously known to it without an obligation of confidence, (ii) independently developed by or for it without use of any Confidential Information and such party can reasonably substantiate that the development occurred before disclosure or was independently developed, (iii) acquired by it from a third party without an obligation of confidence with respect to such information and without breach of this Agreement, or (iv) which is or becomes publicly available through no breach of this Agreement.
- No Representations or Warranties.
PCBS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED PROGRAMS OR ANY OTHER GOODS OR SERVICES PROVIDED HEREUNDER, NOR WITH RESPECT TO THE CLINICAL EFFICACY OF THE LICENSED PROGRAMS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL PCBS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND. PCBS’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, SHALL IN NO EVENT BE GREATER THAN AMOUNT OF LICENSE FEE PAYMENTS MADE BY CLIENT TO PCBS DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE OF TERMINATION OF THIS AGREEMENT.
Client will defend, indemnify and hold harmless PCBS, including all employees, officers and directors of and from any and all third party claims, suits, actions or proceedings including reasonable attorney’s fees (“Claims”) against PCBS, where such Claims arise out of or relate to any breach by Client of any of its obligations under this Agreement, or any communications made by Client to Users not authorized by PCBS in advance.
- Force Majeure.
PCBS shall not be responsible for delays in deliveries due to any cause beyond its control, including, but not restricted to, acts of God, war, acts of the enemy, hostilities, civil commotion or sabotage, acts of Government, fires, floods, explosion or other catastrophes, accidents, epidemics, quarantine restrictions, differences with workmen, embargos or other transportation delays of any kind, inability to obtain material, and delays incurred by PCBS’s suppliers, or which result from Internet service limitations or interruptions of service that are outside its control, including interference by hackers.
This Agreement shall be governed by and construed in accordance with the laws of the State of Rhode Island, without giving effect to the conflict of law principles thereof. Client hereby consents to the exclusive jurisdiction of the state courts of the State of Rhode Island, and the United States Courts for the District of Rhode Island in all matters arising out of this Agreement. Company irrevocably consents to service of process by certified mail, return receipt requested, to its address set forth below.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreement, written and oral, with respect thereto. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both parties.
Any and all notices and other communications to either party hereunder shall be in writing and deemed delivered (i) upon receipt if by hand, overnight courier or facsimile (provided that in the event of a facsimile, concurrently therewith a copy is mailed in accordance with clause (ii) hereof) and (ii) three days after mailing by first class, certified mail, postage prepaid, return receipt requested to the addresses set forth herein.
This Agreement does not constitute either party as an agent, legal representative, joint venturer, partner or employee of the other for any purpose whatsoever and neither party is in any way authorized to make any contract, agreement, warranty or representation or to create any obligation, express or implied, on behalf of the other party hereto. The parties’ relationship to each other is one of independent contractors.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and together which shall constitute one and the same instrument.
Neither party shall assign its rights or obligations hereunder to any other person or entity, without the prior written consent of the other party, provided that, PCBS may assign this agreement to any person or entity that purchases all or substantially all of its operating assets.
Each provision of this Agreement shall be considered severable and if, for any reason, any provision hereof is determined to be invalid and contrary to, or in conflict with, any existing or future law or regulation of any court or agency having valid jurisdiction, such shall not impair the operation or affect the remaining provisions of this Agreement; and the latter shall continue to be given full force and effect and bind the parties hereto and such invalid provisions shall be deemed not to be a part of this Agreement.
IN WITNESS WHEREOF, the Client and PCBS have executed this Agreement as of the Agreement Date.