1. I am participating in yoga classes, health programs, workshops and/or other wellness, body work, therapy, exercise and healing arts activities (collectively, the “Activities”) offered by Break Wellness, LLC,d/b/a Work Break Wellness (the “Company”). The Activities may be offered in a physical location or offered online by videos, television, podcasts, apps or other digital media or platforms. All of such offerings, either physical or online, shall be considered “Activities.”2. I recognize that I must be in adequate physical and mental health to participate in the Activities. I understand that the Activities may require intense physical exertion, and I represent and warrant that I am physically fit enough to participate, and I have no medical condition which would prevent my full participation in the Activities. I recognize that the Activities may cause or aggravate a physical injury or medical condition. I understand that it is my responsibility to consult with a physician before my participation in the Activities. If I have done so, I have taken the physician’s advice. I understand that theCompany reserves the right to refuse my participation in any Activity on medical, fitness or any other grounds.3. In consideration of being permitted to participate in the Activities, I agree to assume full responsibility for any risks, injuries or damages, known or unknown, which I might incur as a result of participating in the Activities.4. In further consideration of being permitted to participate in the Activities, I knowingly, voluntarily and expressly waive any “Claim” (as defined below) I may have against the Company, its owners, managers, teachers, instructors, workshop presenters, employees, independent contractors and staff (each, a“Released Party”) that I may sustain as a result of participating in the Activities even if the Claim arises from accident or the negligence of any Released Party or anyone else. I agree to indemnify and hold harmless each Released Party from any loss, cost, or liability incurred in defending any Claim made by me or anyone making a Claim on my behalf, even if the Claim is alleged to or did result from the accident or negligence of any Released Party or anyone else. “Claim” includes but is not limited to any and all liabilities, claims, demands, expenses, fees, legal actions, rights of actions for damages, personal injury, mental suffering and distress, or death that I may suffer, my spouse, children or unborn child may suffer (including, but not limited to, any legal fees or expenses or any medical expenses) in connection with participation in any Activity.5. I, my heirs or legal representatives forever release, waive, discharge and covenant not to sue anyReleased Party for any Claim relating to, associated with, and/or stemming from the Activities, including any Claim caused by any accident or negligence or other acts of a Released Party.6. I hereby understand that the Company from time to time may photograph, video, or otherwise record classes or events and place such photographs and videos on its Website, social media platforms, or other marketing materials. I hereby consent to the use of my image and likeness that may appear in any such photograph or video.7. I hereby understand that the Company may ask for a review or feedback of the Activities offered. I hereby consent to the use of my review or feedback on its Website, social media platforms, or other marketing materials.8. This Release and Waiver of Liability shall be construed in accordance with, and governed by, the laws of the State of Texas and all actions, suits, claims and proceedings relating to this Release and Waiver ofLiability shall be brought in a court of competent jurisdiction located in Texas. I consent to personal jurisdiction in the State of Texas. In case any provision of this Release and Waiver of Liability shall beheld invalid, illegal or unenforceable, it shall not affect any other provision of this Release and Waiver ofLiability and the remainder of this Release and Waiver of Liability shall remain in full force and effect, with the offending provision(s) severed here from.
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTAND ITS CONTENTS. I VOLUNTARILY AND KNOWINGLY AGREE TO THE TERMS AND CONDITIONS STATED HEREIN. I AM AWARE THAT BY SIGNING THIS AGREEMENT, I AM GIVING UP SUBSTANTIAL RIGHTS, INCLUDING MY RIGHT TO SUE AND CERTAIN LEGAL RIGHTS MY HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS AND ASSIGNS MAY HAVE AGAINST ANY RELEASED PARTY.
This Subscription Services Agreement (“Agreement”) is made effective as of the subscription purchase date (“Effective Date”), by and between Break Wellness LLC d/b/a Work Break Wellness, a Texas limited liability company, maintaining a mailing address at 2313 Lockhill Selma Road, #222, San Antonio, Texas 78230 (“Break Wellness”) and the subscription purchaser (“Licensee”).
BACKGROUNDBreak Wellness has developed a Program and Content (both as defined herein) to provide
instruction in the area of mental health and physical wellness. Break Wellness also provides
Services (as defined herein) related to the Program. Licensee wishes to obtain a right to access and use the Program and Content, and receive certain Services, as set forth herein. Break Wellness is willing to provide the foregoing in accordance with the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,
the sufficiency and receipt of which are acknowledged by the parties, the parties agree as follows.
AGREEMENT
1. Definitions
1.1 “Authorized Affiliates” means wholly-owned subsidiaries and divisions of Licensee as
set forth in Exhibit B.
1.2 “Content” means the written, video, audio, and/or other materials provided to Licensee
in printed, streamable, downloadable, or non-downloadable form, as set forth in Exhibit
A, and all updates thereto provided by Break Wellness during this Agreement, and all
Modified Content.
1.3 “Modified Content” means any alterations, modifications, adaptations, or revisions to
or derivative works, or any adaptations, summaries, abstracts, excerpts, or translations,
of any Content.
1.4 “Online Content” means the content made available to Licensee on Break Wellness’s
or its service provider’s website.
1.5 “Program” means the proprietary Break Wellness program and materials.
1.6 “Services” means the services set forth in Exhibit A.
2. License Grant
1.7 Right to Access the Program. Pursuant to the terms herein and subject to Licensee’s
continued compliance with the terms of this Agreement, Break Wellness grants
Licensee and its Authorized Affiliates a limited, nonexclusive, non-sublicensable, right
to access the Online Content and license to use, upload, copy, and display the Content
according to the terms of this Agreement solely (a) for its, its employees, and its
Authorized Affiliates’ own internal use, and (b) to permit access to and viewing of the
Content by Licensee, its employees, and its Authorized Affiliates through Break
Wellness’ website or Licensee’s internal online system solely for internal use.
1.8 License to the Content. Pursuant to the terms herein and subject to Licensee’s continued
compliance with the terms of this Agreement, Break Wellness grants Licensee and its
Authorized Affiliates a limited, nonexclusive, non-sublicensable, right and license to
use, upload, copy, and display the Content according to the terms of this Agreement
solely (a) for Licensee’s, its employees, and its Authorized Affiliates’ own internal use,
(b) to permit access to and viewing of the Content by Licensee, its employees, and its
Authorized Affiliates through Licensee’s online learning management system solely for
internal use.
2.1 The Content may be stored only on servers owned, leased, or controlled by Licensee or
in Licensee’s (or its service providers’) internal online system, unless otherwise
approved in writing by Break Wellness in advance, provided that Licensee (a) shall be
responsible for all acts and omissions of such service providers, and (b) shall ensure that
such service providers shall make no use of or disclose the Content other than in
support of Licensee’s use under this Agreement. Notwithstanding the foregoing,
Licensee may maintain a copy of the Content in Licensee’s archival systems for backup
and disaster recovery purposes.
2. Restrictions on Use
2.2 The Content may not be copied, transferred, or loaded onto (but may be displayed by) a
personal computer or other individual computing devices (including, but not limited to,
laptops, tablets, smartphones, flash drives, external drives, or the like) by Licensee and
its Authorized Affiliates, provided that none of the foregoing shall make copies of any
aspect of the Content other than as expressly provided herein.
2.3 Online Content may not be downloaded, copied, or shared with any non-licensed
persons or third parties.
2.4 Licensee shall not modify the Content in any way without the prior express written
consent of Break Wellness; provided however, Licensee may include Licensee’s brands
in the Content.
2.5 Rights Notices. Licensee shall not alter, remove, or cover any copyright or other
proprietary rights notice of Licensee that is associated with any Content. Licensee shall
display Licensee’s trademarks and other branding elements in connection with the
Content provided that no substantive aspect of the Content may be modified.
3. License Fee; Payment Terms
3.1 License Fees. Licensee agrees to pay Break Wellness the fees set forth in Exhibit A (the
“Fees”).
2.1 Payment Terms. Payment terms are as set forth in Exhibit A. Licensee agrees to pay
interest on any overdue balance at the rate of the lesser of one and one-half percent
(1½%) per month or the maximum rate allowed by law. All payments shall be made in
U.S. dollars.
3.2 Taxes. Licensee shall pay all applicable federal, state, local, foreign, and/or provincial
taxes resulting from any activities under this Agreement, except for taxes which may be
imposed upon the net income of Break Wellness.
3.3 Non-Refundable. Other than as expressly set forth in this Agreement, any and all
payments made pursuant to this Agreement to Break Wellness by Licensee are
nonrefundable and shall not be returned or repaid to Licensee.
4. Break Wellness’s Obligations
4.1 Break Wellness shall provide Content, Online Content, and Program and Services in a
professional and workmanlike manner. Subject to Licensee’s payment of the Fees Break
Wellness shall provide any updates to the Content and Online Content which Break
Wellness, at its sole discretion, may create. Break Wellness has the right to change the
format or any other aspect of the Content and Online Content at its discretion at any
time.
3. Consent to Use
4.2 I hereby understand that Break Wellness from time to time may photograph, video, or
otherwise record classes or events and place such photographs and videos on its
Website, social media platforms, or other marketing materials. I hereby consent to the
use of my image and likeness that may appear in any such photograph or video.
4.3 I hereby understand that Break Wellness may ask for a review or feedback of the
Program offered. I hereby consent to the use of my review or feedback on its Website,
social media platforms, or other marketing materials.
4.4 I hereby understand that Break Wellness may use my Company or Personal Name
and/or Company or Personal logo on its Website, social media platforms, or other
marketing materials. I hereby consent to the use of my Company name and logo that
may appear in any such material.
4. Right to Audit
4.1 Licensee agrees that Break Wellness, or its authorized representatives, shall have the
right to conduct periodic audits of Licensee’s records and accounts relating to the use of
licenses, and the Content and Online Content provided by Break Wellness under this
Agreement. The purpose of such audits is to verify compliance with the terms and
conditions of this Agreement and to ensure accurate licensing, billing and reporting.
Break Wellness shall treat all information obtained during the audit as confidential and
shall not disclose such information to any third party except as required by law or with
Licensee’s consent. To the extent Break Wellness determines any inconsistency in the
Audit with the Terms of this Agreement, Break Wellness, at its discretion, can take
appropriate actions to remedy such, including but not limited to charging of additional
fees and/or termination of accounts and restriction to Content and Online Content.
5. Intellectual Property
5.1 Ownership. The Licensee acknowledges that the Content and Online Content is owned
by Break Wellness and/or its licensors, and is protected by copyright, trademark, and
other intellectual property rights the ownership and validity of which is acknowledged
by Licensee. Break Wellness retains ownership of all intellectual property rights in the
Content and Online Content, and in any modifications or derivative works therein
created during this Agreement. Notwithstanding the restrictions of Section 3.3 , if
Licensee creates any Modified Content, Licensee agrees to and does hereby irrevocably
and unconditionally transfer, assign, and convey to Break Wellness Licensee’s and its
Authorized Affiliates’ entire right, title and interest in and to all copyrights and all other
rights in the Modified Content, the same to be held and enjoyed by Break Wellness, for
Break Wellness’s own use and benefit, and for Break Wellness’s legal representatives,
successors and assigns, and also agrees to and does hereby waive any moral rights in
such Modified Content.
5.2 Except for the limited license granted under this Agreement, nothing herein effects any
transfer of any right, title or interest in or to the course from Break Wellness to Licensee
or any third party. All rights not specifically granted herein are reserved by Break
Wellness.
5.3 Licensee shall cooperate with Break Wellness in order to protect Break Wellness’s
intellectual property and other rights related to the Content. Licensee shall promptly
report to Break Wellness any potential infringement, misuse, or unauthorized use of the
Content of which Licensee or its Authorized Affiliates become aware.
6. Term and Termination
6.1 Term. This Agreement shall commence as of the Effective Date and shall continue for
an initial term of monthly or annual (“Initial Term”). Upon monthly or annual payment
of the Fees (stated in Exhibit A), this Agreement shall thereafter automatically renew
for additional monthly or annual periods (“Renewal Term”, and, together with the
Initial Term referred to as the “Term”) unless terminated by Company or Licensee.
6.2 For Cause. Either party may terminate this Agreement for any breach that is not cured
within thirty (30) days of receipt of written notice thereof by the party alleged to have
breached. There is no right to cure late payment of any amounts due.
6.3 Without Cause. Licensee may terminate this Agreement without cause by providing
notice at least thirty (30) days prior to the beginning of the Renewal Term. In the event
of termination by Licensee without cause, there shall be no refund of any amounts paid
to Break Wellness.
6.4 Post-Termination. Upon expiration or termination of this Agreement, (a) Licensee and
Authorized Affiliates shall have the right under Section 2.1 to retain and use internally
Content provided by Break Wellness and may only use them in accordance with the
restrictions set forth in this Agreement and (b) Licensee and Authorized Affiliates shall
have no further right to view, display, or use the Online Content and shall cease all use
thereof.
6.5 Survival. In addition to any provisions which are expressly stated herein as surviving,
the following Sections shall survive any expiration or termination of this Agreement: 3
(Restrictions on Use), 7 (Intellectual Property), 8.4 (Post-Termination), 10 (Limitation
of Liability), 12 (Dispute Resolution), and 13 (General).
7. Representations and Warranties
7.1 Mutual. Each party represents and warrants to the other that: (i) it has all requisite
corporate power and authority to execute, deliver and perform its obligations hereunder;
and (ii) it is not a party to any agreement the performance of which is reasonably likely
to affect adversely its ability to perform its obligations hereunder.
7.2 By Break Wellness. Break Wellness represents and warrants to Licensee that it owns,
licenses, or has permission to use all right, title, and interest in and to the Content and
Online Content, and to grant Licensee the rights granted herein.
7.3 DISCLAIMER. THE WARRANTIES EXPRESSLY SET FORTH HEREIN ARE IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NONINFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY
BREAK WELLNESS. LICENSEE ACKNOWLEDGES AND AGREES THAT THE
MODIFICATION OR ALTERATION OF THE CONTENT, OTHER THAN IN
ACCORDANCE WITH SECTION 3.3 OR WITH THE PRIOR WRITTEN CONSENT
OF BREAK WELLNESS IN EACH INSTANCE, WILL VOID BREAK
WELLNESS’S WARRANTIES AND INDEMNIFICATION OBLIGATIONS SET
FORTH HEREIN WITH RESPECT TO SUCH MODIFICATION OR ALTERATION.
8. Limitation of Liability
8.1 EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS, NEITHER
BREAK WELLNESS NOR LICENSEE SHALL BE LIABLE TO THE OTHER FOR
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR
EXEMPLARY DAMAGES OR LOSS OF PROFITS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY ACTS OR OMISSIONS
ASSOCIATED THEREWITH, WHETHER SUCH CLAIM IS BASED ON BREACH
OF WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND
REGARDLESS OF THE CAUSES OF SUCH LOSS OR DAMAGES OR WHETHER
ANY OTHER REMEDY PROVIDED HEREIN FAILS. EXCEPT WITH RESPECT
TO INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL BREAK
WELLNESS’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT
EXCEED THE TOTAL AMOUNTS PAID TO BREAK WELLNESS BY LICENSEE
HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY
PRIOR TO SUCH LIABILITY ARISING.
5. Indemnification
8.2 Indemnification by Break Wellness. Break Wellness agrees to indemnify, defend, and
hold harmless Licensee and its Authorized Affiliates, officers, directors, agents, and
employees, from and against all liabilities, suits, claims, costs, expenses, and losses
(including reasonable attorneys’ fees and costs) of third parties (collectively, all of the
foregoing referred to as “Losses”) based on any third-party claims arising out of the
gross negligence of Break Wellness (or its employees, agents and contractors) occurring
in connection with this Agreement, other than to the extent attributed to the fault of
Licensee.
8.3 Indemnification by Licensee. Licensee agrees to indemnify, defend, and hold harmless
Break Wellness, its officers, directors, agents, and employees, from and against all
Losses based on any third-party claim arising out of the negligence or misconduct of
Licensee (or its employees, agents, contractors, and dealers) occurring in connection
with this Agreement, including, but not limited to, any possession, use, disclosure, or
transfer of Content by Licensee in violation of this Agreement, other than to the extent
directly caused by Break Wellness.
9. Dispute Resolution
9.1 Break Wellness and Licensee will attempt in good faith to resolve any dispute. Each
party will designate an officer or senior level management executive with decision
making authority (collectively, an “Executive”) with the responsibility and the
authority to resolve the dispute. These Executives will meet or hold a telephone
conference call within thirty (30) days after the request to identify the scope of the
dispute and the information needed to discuss and attempt to resolve such dispute.
These Executives will then gather relevant information regarding the dispute and will
meet or hold a telephone conference call promptly to discuss the issues and to negotiate
in good faith to resolve that issue. In the event the parties are unable to resolve the
dispute within sixty (60) days after the specific meeting of the designated Executives as
specified above (or such longer time as the parties agree), then the dispute shall be resolved by mandatory arbitration, which may be submitted by either party. Such
arbitration will be conducted at a location to be mutually agreed to by the parties, or in
the absence of such agreement, in San Antonio, Texas in accordance with the
commercial rules (“Rules”) then in effect of the American Arbitration Association by
one (1) arbitrator appointed in accordance with such rules. The award rendered by the
arbitrator will be final and binding, and judgment may be entered upon it in any court
having jurisdiction thereof. In the event the arbitrator determines that either party fails
to resolve any dispute in good faith, the arbitrator may award (in any amount deemed
appropriate by the arbitrator) the prevailing party its costs and expenses of arbitration,
including filing fees and attorneys, accountants, and experts’ fees. All aspects of the
arbitration shall be treated as confidential, as provided in the Rules. Before making any
disclosure permitted by the Rules, a party shall give written notice to the other party and
afford such party a reasonable opportunity to protect its interests. Each party shall bear
its own costs in the arbitration; however, the parties shall share the fees and expenses of
the arbitrator equally.
9.2 The arbitrator(s) will have no authority to award attorneys’ fees, punitive damages, or
any other monetary relief not measured by the prevailing party’s actual damages. The
arbitrator(s) will not make any ruling, finding, or award that does not otherwise
conform to the terms and conditions of this Agreement. The arbitrator(s) may render a
summary disposition relative to all or some of the issues, provided that the responding
party has had an adequate opportunity to respond to any such application for such
disposition.
9.3 Exceptions to Arbitration Requirement. Notwithstanding the foregoing, either party
may apply to any court of competent jurisdiction for a temporary restraining order,
preliminary injunction, or other interim or conservatory relief, as necessary, without
breach of this arbitration agreement and without any abridgment of the powers of the
arbitrator.
10. Assignment. Licensee may not assign, convey, sublease or transfer, whether by contract,
merger or operation of law (collectively referred to as “assign” or derivatives) any of its rights or
obligations under this Agreement, in whole or in part, without Break Wellness’s prior written
consent. Any attempted assignment in violation of this Agreement shall be of no power or effect.
11. General. This Agreement, including all Exhibits attached hereto, contains the entire
agreement between the parties concerning the subject matter hereof and supersedes any other
agreement and any oral or written communications between the parties. The background recitals
form a material part of this Agreement. This Agreement can only be modified in writing signed
by both parties. The invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement. Except for
Licensee’s obligations to pay amounts to Break Wellness when due, neither party will be
responsible for an inability to perform under this Agreement due to a cause beyond a party’s
reasonable control. In the event that any provision of this Agreement is determined to be invalid,
unenforceable, or otherwise illegal, such provision shall be deemed restated, in accordance with
applicable law, to reflect as nearly as possible the original intentions of the parties hereto, and the
remainder of this Agreement shall remain in full force and effect. This Agreement may be
executed in one or more duplicate counterparts, each of which shall constitute an original and all
of which taken together shall constitute one and the same Agreement. A facsimile of an original
signature shall be deemed an original signature. This Agreement will be construed in accordance
with the laws of the State of Texas (excluding its choice of law rules). Written notices sent
pursuant to this Agreement shall be delivered by registered mail or commercial overnight courier
to the applicable signatory at the address set forth above and shall be considered delivered on the
day after sending. The timing and content of any public announcements or communications
relating hereto shall be subject to the mutual agreement of the parties. The parties are
independent contractor with respect to each other and nothing in this Agreement shall be deemed
to create the relationship of partners, joint venturers, or any agency relationship. Neither party
shall have the authority to bind the other.
IN WITNESS WHEREOF, each party has, by its duly authorized representative, executed this
Agreement as of the Effective Date.
EXHIBIT A
CONTENT
Content means the following (check applicable boxes):
☒ Recorded videos
☒ Interactive course
☒ Online videos available by streaming
☐ Videos available for downloading
☒ Written materials, namely, the resource books, course materials, presentation file
☐ Other:“SERVICES”The Services are the following:
A. NONELICENSE FEES; PAYMENT TERMSLicensing Plan.
Licensee represents that it has one user. Accordingly, Break Wellness is granting
Licensee one license. (“Licensing Plan”).
Licensing Fees. The “Fees” for the Licensing Plan are, collectively, the following:
A. an initial license fee of $8 monthly or $64 annually “Initial License Fee”)
B. any changes in fees to be provided to Licensee at least 60 days prior to the Renewal Term
“Monthly or Annual License Fee”)
Payment Terms are:
A. Licensee shall pay the Initial License Fee upon execution of the Agreement.
B. Renewal Fee will be automatically withdrawn until termination of services by Company or Licensee.
EXHIBIT B
AUTHORIZED AFFILIATES
There are no Authorized Affiliates of Licensee to be included in the rights granted under the Agreement.
