Organization Agreement

1. DEFINITIONS

“WellSort Product(s)” or the “Product(s)”: means the digital versions of the Employee WellBeing Deck, Student Wellbeing Deck, and/or the Career Values Deck available through the Company’s websites https://wellsort.com, https://app.wellsort.com, and/or https://sorts.balancedcardsorts.com/.

 

“Access Code”: means the unique digital code generated and provided by the Company to the Organization to provide to End Users to give them access to the digital Product(s). Access Codes are available in two forms: (i) an “Unlimited Use, Digital Access Code”: a digital code purchased for a flat-fee with an unlimited number of digital Product uses during a one-year term with the option to renew each subsequent year, and (ii) a “Bulk, Multi-use Digital Access Code”: a code with a pre-set number of purchased Product uses, with the option to re-fill the code with additional Product uses if needed.

 

“Personnel”: means officers, employees, counselors, contractors (including subcontractors and their employees) and agents of the Organization who are authorized by the Organization to provide End Users with access to the Product(s) in accordance with the terms of this agreement.

 

“End Users”: means Personnel or any other individual that the Organization authorizes to use the Products, which may include students attending a school within the school district, college, or university that has purchased the Product(s), or employees of a company or other organization that has purchased the Product(s);

 

“Order Form”: means the WellSort Proposal & Order Form that sets out the commercial terms and is executed by the Parties;

 

“Terms of Service”: means WellSort’s Terms of Service for End Users found at: https://www.wellsort.com/termsofservice

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2. WELLSORT LICENSE RIGHTS; LIMITATION ON SCOPE OF LICENSE

Subject to and conditioned upon the Organization’s strict compliance with all of the terms and conditions contained herein, the Company hereby grants to the Organization and its End Users a non-exclusive, non-transferable, non-sublicensable limited license and right to use the WellSort Product(s) (including the associated unique digital Access Code) solely and directly for the purpose of providing access to, and use of the Product(s) by End Users in connection with programming provided for or arranged by the Organization or its Personnel for the benefit of the End Users. The license and right to use granted to the Organization herein shall be limited to the number of individual Product(s) purchased by the Organization at the time of sale of the Product(s).

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The Parties acknowledge and agree that the Organization and its Personnel shall only use the Product(s) in connection with programming provided for or arranged by the Organization or its Personnel for the benefit of the End Users. The Organization shall only access and cause its Personnel and End Users to access the Product(s) through the Company’s website and using the unique Access Code provided by the Company upon receipt by the Company of payment for the right to access the Product(s). The Organization and its Personnel shall not copy, reproduce, or redistribute, in any form, any
or all of the Product(s) for any purpose, except as expressly provided for in this Section 2, and shall not use any part of the Product(s), and marks or depictions related thereto, unless such use is directly a result of an End User’s completion of the Product(s) following receipt of an unique Access Code from the Organization or its Personnel.

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3. CONDITIONS TO USE

In order to ensure the quality and effectiveness of the use of the Product(s) by the Organization and its Personnel with the End Users, and to protect the reputation and the goodwill engendered by WellSort and the Company, and in consideration for the Company’s agreement to license the Product(s) to the Organization, the Organization and its Personnel shall comply with and abide by the following terms and conditions:

 

The Organization and its Personnel shall utilize the Product(s) with End Users in a competent manner, and to the extent applicable, in a manner consistent with professional standards applicable to the Personnel providing or administering the Product(s) to End Users; and

 

The Organization and its Personnel shall not utilize the Product(s) in a manner that violates applicable law or may give rise to a claim of discrimination against the Organization, its Personnel, or the Company, or create the appearance of discrimination on the part of the Organization or its Personnel against an End User.

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4. OWNERSHIP

The Company holds all rights, titles, and interests, including but not limited to intellectual property rights (which include, but are not limited to, patent, copyright, trademark, and trade secret rights), to the WellSort Product(s), its documentation, and all related information and content. The Organization, its Personnel, and End Users have no rights in the WellSort Product(s) other than those expressly granted under this Agreement, and in particular, under Section 2 above. The Organization shall not, directly or indirectly, for the benefit of the Organization or any other person or entity and whether for compensation or free of charge (i) reproduce, by any means whatsoever, in whole or in part, the Product(s) and related documentation, (ii) disclose, publish or commercialize, in whole or in part, the Product(s), iii) transfer, transmit, communicate, in whole or in part, the Product(s) for the benefit of a third party, including by loan, hiring out or transfer, (iv) adapt, modify, transform, arrange in whole or in part any of the Product(s) in order to create a similar Product, in any form, v) create any transcription or translation into other languages, or any modification, even in part, of the Product(s) or the associated documentation without the prior written approval of the Company. Nor shall the Organization attempt to do any of the foregoing the Organization shall ensure that its Personnel and End Users respect all the conditions specified in this section and, more generally, in this Organization Agreement and the Terms of Service. The Organization undertakes to preserve all intellectual property right notices and trademarks with respect to the WellSort Product(s) and its documentation.

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5. REPRESENTATIONS AND WARRANTIES

Each Party represents and warrants that it has full power (corporate or otherwise) and authority to enter into and perform its obligations under the Agreement, and all actions necessary to authorize the execution, delivery, and performance of the Agreement have been taken by such Party;
The Company represents and warrants that, as of the Effective Date, the Company owns all rights, titles, and interests throughout the world in and to the Product(s), which Product(s) has intrinsic value.

6. WARRANTY DISCLAIMER

THE PRODUCT(S) AND ALL RELATED DOCUMENTS AND CONTENT ARE PROVIDED TO THE ORGANIZATION “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ALSO TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PRODUCT(S) AND ALL RELATED DOCUMENTS AND CONTENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE, EXCEPT FOR THOSE WARRANTIES EXPRESSLY PROVIDED HEREIN.

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7. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR ANY PECUNIARY LOSS) HOWEVER CAUSED AND ON ANY LEGAL OR EQUITABLE THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY BREACH OF CONDITION(S) OR FUNDAMENTAL TERM(S) OR FOR A FUNDAMENTAL BREACH(S). IN ANY CASE, THE COMPANY’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY THE ORGANIZATION FOR THE PRODUCT(S). THIS LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL SUCH PARTY’S EXPENDITURE’S BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT.

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8. CHANGES TO THE AGREEMENT AND TERMS OF SERVICE.

The Company reserves the right to modify, amend, or update this Organization Agreement, Terms of Services, and Privacy Policy ("Modifications") at any time. The Company will provide notice of material Modifications, determined by the Company in its sole discretion, to the Organization through reasonable means, which may include notification on the Company’s website or sending notice to the email address associated with the Organization’s account. Material Modifications will become effective thirty (30) days after such notification, unless the Organization provides written notice of objection prior to the expiration of such notice period. If the Organization timely objects to the material Modifications, the current version of the Agreement shall continue to govern the relationship between the parties until the expiration of the then-current Term, at which
point the relationship shall terminate unless the Organization accepts the modified Agreement.

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9. CONSIDERATION; ACCESS

 

a. Consideration. As full consideration for the rights and license granted to the Organization hereunder, the Organization shall pay the Company for the Term hereof the fees described in the applicable Order Form, payable in advance, based on the Services and the number of individual digital Product(s) (including Unlimited Use Digital Access Codes) desired by the Organization at the time of purchase (the “License Fee”).

 

b. Access. The Organization shall receive from the Company a unique Access Code that may be used by the Organization, its Personnel, or End Users to create a unique account for the purposes of completing an individual digital card sort Product(s). The use of the Product(s) requires access to the internet, and the Company is not responsible for providing internet access to the Organization, its Personnel, or End Users.

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10. TERM; TERMINATION

 

a. Term. The term of this Agreement shall commence upon the applicable Order Form Effective Date (the “Effective Date”) and shall end automatically after the Organization, its Personnel, or End Users, have completed the number of individual assessments acquired at the time of purchase, or in the case of an Unlimited Use Digital Access Code exactly one year after the term of this Agreement commences, unless earlier terminated pursuant to the terms of this Agreement (the “Term”), or extended through renewal.

Termination. The occurrence of any one or more of the following events shall constitute a default under this Agreement and shall cause an automatic termination of this Agreement: (i) If the Organization, its Personnel, or End Users default under the terms of this Agreement for any reason; or (ii) any wrongdoing or conduct by the Organization, Personnel, or End Users, that would impact the business reputation of the Company or its affiliates;

Notwithstanding the foregoing, or any other term of this Agreement, the Company may terminate the Agreement at any time without prior notice if the Company determines in its sole discretion using its good faith business judgment that the actions or failure to act by the Organization, its Personnel, or End Users creates a risk of harm to any End User or liability on the part of the Company, in which case, termination will be effective immediately.

Upon termination, the Organization, its Personnel, and End Users shall cease using the Product(s), and its Access Code to the Product(s) shall be terminated. All payments made by the Organization for the Product(s) are non-refundable upon termination. If this Agreement so terminates, the Company may pursue at law and at equity, all lawful rights it has hereunder.

Notwithstanding anything else contained herein, the provisions of Sections 4, 6, 7, 11, and 12 shall survive expiration of the Term or termination of the Agreement.

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11. CONFIDENTIALITY

Subject to the Data Collection and Use provisions of Section 14.b herein, each Party agrees that it will not disclose the confidential information of the other Party and will use such confidential information only for the purpose of performing its obligations under this Agreement. Confidential information includes all non-public information relating to a Party’s business strategies and plans, operations, financial affairs, actual and prospective customers, intellectual property, service providers and the terms of this Agreement and includes all non-public information that is commonly understood to be confidential, whether or not that information is marked as confidential and whenever provided to or obtained by the other Party. Each Party shall be responsible in the event of a breach of this obligation by an employee of that Party. Each Party will promptly inform the other Party if it becomes aware of a breach of its obligations under this Section 11 and will take prompt remedial actions to limit the consequences of such a breach.

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WellSort and its digital Products do not collect student education records. In order for End Users to access a digital Product using the Access Code provided to them by the Organization, the End User will be directed to the website and asked to enter their name and their email address, as well as a password of their choice. This information is used to give End Users access to the digital card sort Product. The Company will not share End User names, email addresses, or passwords with any third parties for any reason.

In the event Company is granted access to personally-identifiable information contained in Student education records pursuant to this Agreement and providing the Product(s), the Company shall be considered a school official with legitimate educational interests in and to such information in accordance with the Family Educational Rights and Privacy Act of 1974 ( (20 U.S.C. § 1232g; 34 CFR Part 99) (“FERPA”). The Company agrees to comply with all applicable federal and state laws restricting the access, use, and disclosure of such student information, and shall take no action with respect to such information that would intentionally cause the Organization to violate its obligations under federal or state law related to such information, including, but not limited to, FERPA. The Company shall not access and/or use such information except to perform services pursuant to this Agreement or as otherwise permitted by state and federal law. The Company also agrees that it is under the direct control of the Organization with respect to the use and maintenance of FERPA-protected information shared by the Organization with the Company.

12. INDEMNIFICATION

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The Organization shall defend, indemnify, and hold the Company harmless against any damage, liability or expense, including reasonable attorney’s fees and court costs, incurred by the Company arising out of the Organization, its Personnel, or Employee’s use of the Product(s).

 

13. NOTICES

Any notice which either party is permitted or required to give to the Company shall be deemed to have been given and received, and to be effective for all purposes when delivered personally, or when sent by certified mail or by email, in each case to the address listed below (or if notice of a new address is provided in accordance with this Agreement, the new address):

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To the Company:

WellSort, Inc.

62 Portland Road, Suite #44

Kennebunk, ME 04043

Attn: Tim Seavey

Notices shall be effective if addressed to the last known address of the individual/party to whom such notice is being sent.

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14. MISCELLANEOUS

a. No Agency or Counseling Relationship. Nothing contained herein shall be deemed to make either party an agent or legal representative of the other for any purpose whatsoever. The use of the Product(s) by the Organization, its Personnel, or End Users shall in no way be deemed to create a therapeutic, counseling, or other special relationship between the Company and its owners, employees, or agents, and the Organization, its Personnel, or End User.

 

b. Data Collection and Use. Information the Organization, its Personnel, End Users provide to the Company and information and data that the Company otherwise collects about the Organization, its Personnel, or End Users, including, but not limited to, information provided through purchase and/or use of the Products(s), is subject to the terms of the Company’s Privacy Policy, which are available through a link on the Company’s website and incorporated into this Agreement by reference. The Company reserves the right to update the Privacy Policy from time to time, and the Organization shall visit the Company’s website periodically to review the most current version.

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c. Assignment. The Organization may not assign, lease or sublease, sublicense or in any other manner transfer to any person or other organization its rights under this Agreement, except as provided for herein. The Company may assign its rights under this Agreement and will provide notice to the Organization following the close of such a transaction.

 

d. Amendment. Except as provided in Section 8, The Agreement may not be amended except by written agreement between the Company and the Organization.

 

e. Governing Law. The Agreement shall be construed and enforced in accordance with the laws of the State of Maine. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement must be brought in the courts of the State of Maine in Cumberland County, and each of the parties consents to the jurisdiction of such courts in any such action or proceeding and waives any objection to venue laid therein.

 

f. Benefit. The Agreement shall be binding upon and inure to the benefit of the Company and the Organization and their respective heirs, personal representatives, successors and assigns.

 

g. Entire Agreement. The Agreement contains the entire agreement between the parties and supersedes all prior agreements or understandings, written or otherwise, which are expressly hereby agreed to be of no further force or effect.

 

h. Severability. If any provision of the Agreement or its application to any party or circumstances shall be declared void, illegal, or unenforceable, the remainder of the Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event, the parties shall use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.

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i. Force Majeure. Any failure or delay by the Company in the performance of its obligations pursuant to the Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, and quarantines, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States or any nation where the obligations under the Agreement are to be executed, strikes, supplier and third-party failure, lockouts, or labor difficulties, or any similar cause beyond the reasonable control of the Company.

 

J. Waiver. The waiver by either party hereto of any breach of any term, condition, or provision of the Agreement, or the failure by either party to enforce any term, condition, or provision of the Agreement, shall not operate or be construed as a waiver of any other term, condition, or provision or of any subsequence breach of the same term, condition, or provision.

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