SENIOR LIVING FACILITY AGREEMENT AND TERMS OF SERVICE
This Agreement and Terms of Service (Agreement) is a legally enforceable agreement entered by the senior living facility (Facility) and Power for Parkinson’s® (PFP), a 501(c)(3) nonprofit corporation, organized under the laws of the State of Texas regarding for Facility’s access to and use of PFP’s Senior Living Program (Program). By accessing the Program, Facility agrees to be bound by this Agreement.
A. SERVICES DESCRIPTION
PFP will provide Facility access to the Senior Living Program (Program), to include the following:
Access to a virtual library of symptom-focused exercise classes designed by PFP specifically for senior and assisted living residents with Parkinson’s disease (PD);
Access to a virtual orientation and planning session to train Facility staff about PD and how to safely and effectively implement exercise classes for people with PD; and,
Additional support services based on the type of Program subscribed to by Facility.
B. FEES AND PAYMENT
1. Payment. Facility agrees to pay a monthly or annual fee specified by PFP. This fee may change from time to time upon 30 days advanced notice.
a. Monthly Fee. If Facility elects to pay a monthly fee, then each month that this Agreement is in effect, Facility acknowledges and agrees that PFP or the Payment Processor (see B.3., below) is authorized to charge the same credit card or other payment method (Payment Method) as was used for the initial fee in the amount of the then current monthly fee. The monthly fee will continue to be billed automatically to the Payment Method until cancelled.
b. Annual Fee. If Facility elects to pay an annual fee, then each year that this Agreement is in effect, Facility acknowledges and agrees that PFP or the Payment Processor (see B.3., below) is authorized to charge the same Payment Method as was used for the initial fee in the amount of the then current annual fee. The annual fee will continue to be billed automatically to the Payment Method until cancelled.
2. No Refunds. Refunds cannot be claimed for any partial period.
3. Payment Processing. PFP may use a third-party payment processor (Payment Processor) to facilitate payment by Facility for the Program. Facility consents to the use of a Payment Processor. The processing of payments or credits, as applicable, in connection with Facility’s use of the Program will be subject to the terms, conditions and privacy policies of the Payment Processor and Facility’s Payment Method provider or issuer, in addition to those provided in this Agreement. PFP is not responsible for any errors by the Payment Processor. Facility is responsible for all fees charged by the Payment Processor or other third parties to access and use the Program (e.g., charges by ISPs or mobile carriers).
C. FACILITY’S CLASS OBLIGATIONS
It is the Facility’s obligation to provide any chairs, balls, or other equipment needed by participants engaging in Program activities and to provide an appropriate space for Program activities. PFP is not responsible for providing any supplies or equipment needed for the Program, unless otherwise expressly stated in this Agreement.
D. LIMITATION
This Agreement authorizes use of the Program only by the Facility and only at the Facility location at the address provided by Facility in subscribing to the Program, regardless of whether Facility is part of a larger organization or has multiple locations.
E. SAFETY
Facility is solely responsible for the safety of participants in the Program to the extent allowed by law. Any safety training or considerations provided by PFP are provided for information only and in no way absolve Facility of any obligations for the safety of participants. It is Facility’s obligation to provide sufficient staff and/or volunteers to enable Program activities to be safely performed by participants. Nothing in this Agreement is or should be construed to impose any obligations upon PFP for the safety of participants in the Program.
F. TERM
This Agreement will continue until terminated by PFP or Facility upon 30 days advanced notice.
G. CONFIDENTIALITY
1. Confidential Information. In carrying out its obligations under this Agreement, Facility may directly or indirectly receive private and confidential information from PFP (Confidential Information), including but not limited to PFP financial, personnel, or related information. Facility agrees that such Confidential Information will be held by Facility in full confidence and will not be revealed to any other person, firm, or organization, unless such disclosure is authorized in advance in writing by PFP or is required by law.
2. Proprietary Property. In providing services pursuant to this Agreement, PFP may provide Facility with information regarding PFP's business methods and other confidential and proprietary information and materials belonging to PFP, including, but not limited to materials, marketing strategies, vendor relationships, and other trade secrets and valuable, and confidential information of PFP (Proprietary Information). Facility understands and agrees that all Proprietary Information constitutes the valuable intellectual property of PFP, and Facility acknowledges the importance of maintaining the confidentiality of the Proprietary Information and agrees that such Proprietary Information will be held in full confidence and will not be revealed to any other person, firm, or organization, unless such disclosure is authorized in advance in writing by PFP or by this Agreement, or is required by law.
3. Safeguarding Confidential and Proprietary Information. With regard to the handling of Confidential Information and Proprietary Information (collectively “Protected Information”), unless authorized in advance in writing by PFP or required by law, Facility will do the following:
a. not disclose or provide access to Protected Information to any third party;
b. not use Protected Information for anyone’s benefit other than PFP;
c. return to PFP all Protected Information in Facility’s possession to PFP upon the following, whichever occurs first:
i. completion of the services, obligations and/or activities that necessitated Facility having access to Protected Information;
ii. termination of this Agreement;
iii. Facility ceasing to use the services provided pursuant to this Agreement.
4. Survival. The provisions of this section survive the termination or expiration of this Agreement.
H. LIMITS ON ACCESS TO PROGRAM AND USE OF PFP TRADEMARK(S)
1. License. Subject to the provisions of this Agreement, PFP grants Facility a non-exclusive, non-assignable, non-transferable, revocable license to access and use the Program by Facility only.
2. Limitations. Facility must comply with all applicable laws when using the Program. Except as may be expressly permitted by applicable law or expressly enabled by a feature of the Program, Facility will not, and will not permit anyone else to:
a. store, copy, modify, or distribute any of the content made available through the Program;
b. compile or collect any content available on the Program as part of a database or other work;
c. use any automated tool (e.g., robots, spiders) or manual process to monitor, store, copy, modify, distribute, or resell any content from the Program;
d. frame or otherwise incorporate the Program or any portion of the Program as part of another website or service;
e. reproduce, duplicate, copy, sell, resell, or exploit for any commercial purposes any portion of the Program (including the display of third-party advertising);
f. circumvent or disable any digital rights management, usage rules, or other security features of the Program, or any content available through the Program;
g. use the Program in a manner that threatens the integrity, performance, or availability of the Program;
h. remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Program or any content available through the Program.
3. Power for Parkinson’s Trademarks. The Power for Parkinson’s® name and logo (set out below) are registered trademarks (PFP trademarks) of PFP.
PFP hereby grants to Facility a nonexclusive, nontransferable, nonsublicensable, revocable license to use the PFP trademarks, solely in connection with the Program, and solely for the term of this Agreement. Any use of the PFP trademark by Facility must be followed by “Senior Living Program” and each use of the trademark must contain the trademark symbol (®). Facility may make no other use of the PFP trademarks and this license does not include any right for the Facility to grant sublicenses.
4. Program Name. Facility shall refer to the program as “Fitness for Mind & Body by Power for Parkinson’s®” or “Power for Parkinson’s® Fitness for Mind & Body” in any materials in any form used by Facility to promote, provide notice, or advertise the availability of the Program at Facility.
I. ASSUMPTION OF RISK
1. Facility understands and acknowledges that the Program provided by PFP includes fitness activities, which can be potentially hazardous and, as with any physical activity, involve a risk of injury or death. Facility is responsible for ensuring that participants are aware of the potential dangers involved and are appropriate for participation.
2. Facility’s use of the Program is at Facility’s sole risk. The services provided by PFP are provided on an "as is" and "as available" basis. PFP expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. PFP does not warrant uninterrupted use or operation of the Program service or that any data sent by or to Facility will be accurate, complete, transmitted in uncorrupted form, or transmitted within a reasonable amount of time. No advice or information, whether oral or written, obtained by Facility from PFP will create any warranty not expressly stated in this Agreement.
J. RELEASE
Facility agrees and understands that in partial consideration for the services provided by PFP pursuant to this Agreement, the Facility on behalf of itself, its representatives, successors, and assignees, hereby releases, discharges and forever holds harmless PFP, its officers, directors, members, contractors, agents, volunteers, and employees (collectively, the “Released Parties”), from any and all claims, responsibilities or liabilities for any injury, death or damage (both economic and noneconomic) from or arising out of Facility’s use of the services provided by PFP, whether or not any such injury or damage is the result of any negligence on the part of any of the Released Parties.
THIS RELEASE IS EFFECTIVE REGARDLESS OF WHETHER THE CLAIMS OR ACTIONS RELEASED ARE FOUNDED IN WHOLE OR IN PART UPON (1) THE ACTUAL OR ALLEGED NEGLIGENT ACT OR OMISSION OF THE RELEASED PARTIES OR (2) THE ACTUAL OR ALLEGED NEGLIGENT ACT OR OMISSION OF THE RELEASED PARTIES IN COMBINATION WITH ANY OTHER PERSON'S ACTUAL OR ALLEGED NEGLIGENT ACT OR OMISSION.
K. GENERAL PROVISIONS
1. Governing Law and Venue. This Agreement will be governed by the laws of the State of Texas. Venue for any disputes arising out of this Agreement or the relationship between PFP and Facility will be in Travis County.
2. Severability. In case any one or more of the provisions contained in this Agreement is for any reason, held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision hereof and this Agreement will be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
3. Entire Agreement. This Agreement contains the entire agreement and understanding by and between PFP and Facility with respect to the matters described herein, and no representations, promises, agreements, or understandings, written or oral, not contained in this Agreement will be of any force or effect. No change or modification of this Agreement will be valid or binding unless it is in writing and agreed to by the party against whom such change or modification is sought to be enforced. No valid waiver of any provision of this Agreement will be deemed a waiver of any other provision of this Agreement.
4. Assignment. Neither party may assign this Agreement to any other person or entity without the express written approval of the other party.
5. Warranties and Other Covenants. PFP warrants that it has legal authority to enter into this Agreement and to perform all of its obligations imposed in this Agreement. Facility warrants that it has legal authority to enter into this Agreement and to perform all of its obligations imposed in this Agreement.
6. Interpretation Tools. The headings contained in this Agreement are for convenience of reference and will not form part of, or impact the interpretation of, this Agreement. The use pronouns in this Agreement (e.g., he, she, it) will have no significance in the interpretation and application of the terms, provisions and conditions of this Agreement, such use being solely for the sake of convenience.
7. Successors and Assigns. This Agreement will inure to the benefit of and be binding upon, the legal representatives, heirs, successors and assigns of the parties.
8. Consent to Electronic Communications. By using the Program, Facility consents to receiving electronic communications from PFP. These communications may include notices about Facility’s account and information concerning or related to the Program. Facility agrees that any notices, agreements, disclosures, or other communications that PFP sends to Facility electronically will satisfy any legal communication requirements, including that such communications be in writing. Facility is solely responsible for all fees charged by its telecommunications service provider, or any other service provider related to its use of the Program, including without limitation any text messaging fees, data charges, and other fees.
9.Authority to Enter Agreement. You, the person entering into this Agreement on behalf of Facility, are affirming that you have authority to bind Facility.