HopeCheck
Terms & Conditions
BACKGROUND
HopeCheck is a public benefits corporation that offers a cloud-based platform-as-a-service to help Counselors (collectively K-12 school counselors, college counselors, psychiatrists, psychologists, social workers, academic advisors, doctors, religious advisors, youth leaders, therapists, life coaches, pastors, etc.) monitor the hope outlook of their opted-in patients, clients, students, etc., (each called a Participant) to help identify any Participant whose mental health may be declining (this defines our “Platform”). Early intervention is the key to maintaining strong mental health. HopeCheck provides the earliest indication of any emerging mental health issues to Counselors by sending them frequent reports of Participant hope scores. Counselors read the reports and can do follow-up check-ins on any Participant who is exhibiting troubling hope scores. The follow-up check-in allows Counselors to help the Participant. Each Counselor and HopeCheck enter into a Subscription Agreement (SA) pursuant to which individual Counselors subscribe to use the Platform and receive services. These Terms and Conditions create this Agreement.
1 RIGHT TO USE PLATFORM
1.1 Platform. Subject to the terms and conditions of this Agreement, HopeCheck hereby grants Counselor the limited, nonexclusive, nontransferable, non-sublicensable right to access and use the Platform during the Term solely for Counselor’s use (including use by Counselor’s Participants) who are collectively Authorized Users.
1.2 Limitations. The following limitations and restrictions will apply to the Platform:
(a) Counselor will not provide Counselor access to the Platform to any person who is not an employee or contractor of Counselor or an Authorized User.
(b) Except as expressly permitted hereunder, Counselor will not and will not permit or authorize any third party to:
(i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform;
(ii) modify, translate or create derivative works based on the Platform;
(iii) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Platform;
(iv) use the Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party;
(v) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or
(vi) remove or obscure any proprietary notices or labels of HopeCheck or its suppliers on the Platform.
2 OWNERSHIP; RESERVATION OF RIGHTS
2.1 Counselor Ownership. Counselor owns
(a) any data Counselor inputs or transmits into the Platform that identifies Counselor or its Participants (including Authorized Users) and any Survey responses provided by Counselor’s Participants (including Authorized Users) (“Data”), and
(b) any other data and content provided by Counselor or Authorized Users to HopeCheck or input into the Platform (“Other Data”, and, together with the Data, “Counselor Data”). Counselor hereby grants to HopeCheck a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable (through multiple tiers)
(i) right and license during the Term to copy, distribute, display and create derivative works of and use the Counselor Data to perform HopeCheck’s obligations under this Agreement;
(ii) perpetual, irrevocable right and license to copy, modify and use Counselor Data to create aggregated, non-personally identifiable data or information (“Blind Data”) and copy, distribute, display, create derivative works of and use the Blind Data for benchmarking, research or development purposes, including published research. Counselor reserves any and all right, title and interest in and to the Counselor Data other than the licenses therein expressly granted to HopeCheck under this Agreement.
2.2 HopeCheck Ownership. HopeCheck retains all right, title and interest in and to the Platform, all copies or parts thereof (by whomever produced) and all intellectual property rights therein. HopeCheck grants no, and reserves any and all, rights other than the rights expressly granted to Counselor under this Agreement with respect to the Platform.
2.3 Feedback. Counselor may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to HopeCheck with respect to the Platform. HopeCheck has full discretion to determine whether to proceed with development of the requested enhancements, features or functionality. Counselor hereby grants HopeCheck a royalty-free, fully paid-up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback in whole or in part; and (b) use the Feedback in whole or in part, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and lease products or services that practice or embody, or are configured for use in practicing, the Feedback in whole or in part.
2.4 Counselor Responsibilities. Counselor will (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and notify HopeCheck promptly of any such unauthorized access or use, and (b) use the Platform only in accordance with the documentation and applicable laws and regulations.
2.5 Data Security. HopeCheck will implement and maintain reasonable administrative, physical and technical safeguards (“Safeguards”) which attempt to prevent any collection, use or disclosure of, or access to Counselor Data that this Agreement does not expressly authorize, including, without limitation, an information security program that meets commercially reasonable industry practice to safeguard Counselor Data. Such information security program includes (a) physical security of all premises in which Counselor Data will be processed and/or stored; and (b) reasonable precautions taken with respect to the employment of, access given to, and education and training of any and all personnel furnished or engaged by HopeCheck to perform any part of the services hereunder.
2.6 Privacy Policy. HopeCheck cares deeply about privacy, and we recognize that it is important to the Counselor, Participants, and parents we serve. Please see our Privacy Policy for more information about how we protect the privacy of those we serve.
2.7 Right to Data Destruction. If requested by the Counselor, during or after the term of this agreement, HopeCheck will make reasonable efforts to destroy or otherwise render Counselor Data inaccessible.
3 FEES; PAYMENT TERMS
3.1 Fees; Payment Terms. Unless otherwise indicated on the offer made to the Counselor, after any free period granted, Counselor may pay fees to continue subscription(s) after the free period ends. If Counselor chooses to continue a paid subscription, Counselor will pay invoice within thirty (30) days of the invoice date. If payment of any fee is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Counselor will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by HopeCheck within thirty (30) days from the time such payment is due, HopeCheck may suspend access to the Platform until such payment is made.
3.2 Net of Taxes. All amounts payable by Counselor to HopeCheck hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively "Taxes"). Counselor will be solely responsible for payment of any Taxes, except for those taxes based on the income of HopeCheck. Counselor will not withhold any Taxes from any amounts due HopeCheck.
4 TERM, TERMINATION
4.1 Term. The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Section 4, will continue through the date set forth on the offer made to the Counselor (the “Term”).
4.2 Termination; Effect of Termination. In addition to any other remedies it may have, either party may terminate this Agreement for any reason, at any time. Upon any termination of this Agreement for any reason, HopeCheck may, but is not obligated to, in its sole discretion and without delivery of any notice to Counselor, delete any Counselor Data stored or otherwise archived on the Platform or on HopeCheck’s network. For paying Counselors, Counselor agrees to pay in full any balance due for the use of the Platform up to and including the last day on which the Platform is provided during a paid subscription.
4.3 Use-it-or-Lose-it Free Trial Provision: From time to time HopeCheck makes offers to certain Counselors (such as .edu or non-profit Counselors) for a free subscription to use our Platform for a set period of time (such as one month, one semester, or one year). These free offers always come with an important caveat that each Counselor agrees to actively use the Platform as a condition of continued use. HopeCheck often has more Counselors who want free HopeCheck subscriptions than HopeCheck has free subscriptions available. Therefore, if HopeCheck provides a Counselor with a free Subscription for any time but the Counselor does not use the Subscription within at least 14 days of the assignment of a HopeCheck line to a Counselor, HopeCheck reserves the right to Terminate the Counselor’s Subscription and free use of the Platform and to re-assign the Counselor’s assigned HopeCheck line to another Counselor. Use of the service is defined by the Counselor having at least one Participant who has responded with their HopeCheck score within the prior period (no less than 14 days). In plain language: To keep a Counselor’s line free and active, the Counselor must use the Platform by having at least one Participant join that Counselor’s program within 14 days of the date the Counselor is notified of their free HopeCheck telephone line and having that Participant respond with their hope score.
4.4 Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 2 (Ownership; Reservation of Rights), 3.1 (Fees; Payment Terms), 4.4 (Termination; Effect of Termination), 5 (Confidentiality), 6.2 (Disclaimer), 7 (Limitations of Liability; Indemnification), and 8 (General) will survive.
5 CONFIDENTIALITY
5.1 As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective Counselors’ data, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. HopeCheck’s Confidential Information includes, without limitation, the Platform. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a party, and each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the terms of this Agreement, in whole or in part (i) to its employees, officers, directors, professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), existing and prospective investors or acquirers contemplating a potential investment in or acquisition of a party, sources of debt financing, acquirers and/or subcontractors who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as reasonably deemed by a party to be required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and to certify the return or destruction of all such Confidential Information and embodiments thereof.
6 REPRESENTATIONS, WARRANTIES AND DISCLAIMER
6.1 Representations and Warranties. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when approved by both parties.
6.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND HOPECHECK DISCLAIMS ANY AND ALL WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WARRANTS AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY OR AGAINST INFRINGEMENT. NEITHER PARTY WARRANTS THAT THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY ARE ERROR-FREE OR THAT OPERATION OF SUCH PARTY’S PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
7 LIMITATIONS OF LIABILITY; INDEMNIFICATION
7.1 Disclaimer of Consequential Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR (A) COUNSELOR’S USE OF THE PLATFORM OTHER THAN EXPRESSLY PERMITTED BY SECTION 1 (RIGHT TO USE PLATFORM) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7.4 AND 7.5 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
7.2 General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR (A) COUNSELOR’S USE OF THE PLATFORM OTHER THAN EXPRESSLY PERMITTED BY SECTION 1 (RIGHT TO USE PLATFORM) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7.4 AND 7.5 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CLIENT TO HOPECHECK UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
7.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
7.4 Indemnification by HopeCheck. Except for liability for which Counselor is responsible under Section 7.5, HopeCheck will indemnify, defend and hold Counselor and the officers, directors, agents, and employees of Counselor (“Counselor Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party or incurred by the Counselor Indemnified Parties (including reasonable attorneys' fees) arising from any third party claim, demand or allegation that the use of the Platform in accordance with the terms and conditions of this Agreement infringes such third party’s copyright or results in a misappropriation of such third party’s trade secrets. HopeCheck will have no liability or obligation under this Section 7.4 if such Liability is caused in whole or in part by (a) modification of the Platform by any party other than HopeCheck without HopeCheck’s express consent; (b) the combination, operation, or use of the HopeCheck with other product(s), data or services not provided by HopeCheck where the Platform would not by itself be infringing; or (c) unauthorized or improper use of the Platform. If the use of the Platform by Counselor has become, or in HopeCheck’s opinion is likely to become, the subject of any claim of infringement, HopeCheck may at its option and expense (i) procure for Counselor the right to continue using the Platform as set forth hereunder; (ii) replace or modify the Platform to make it non-infringing so long as the Platform has at least equivalent functionality; (iii) substitute an equivalent for the Platform or (i) if options (i)-(iii) are not available on commercially reasonable terms, terminate this Agreement. This Section 7.4 states HopeCheck’s entire obligation and Counselor’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
7.5 Indemnification by Counselor. Counselor will indemnify, defend and hold HopeCheck and the officers, directors, agents, and employees of HopeCheck (“HopeCheck Indemnified Parties”) harmless from Liabilities that are payable to any third party or incurred by the HopeCheck Indemnified Parties (including reasonable attorneys' fees) arising from any third party claim, demand or allegation arising from or related to (a) any use by Counselor or Authorized Users of the Platform in violation of this Agreement or (b) the Counselor Data.
7.6 Indemnification Procedure. If a Counselor Indemnified Party or a HopeCheck Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 7.4 or Section 7.5, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both parties hereunder, such consent not to be unreasonably withheld or delayed.
8 GENERAL
if any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement by operation of law or otherwise or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section 8 will be null and void. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Counselor acknowledges that any unauthorized use of the Platform will cause irreparable harm and injury to HopeCheck for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Counselor further agrees that HopeCheck will be entitled to injunctive relief in the event Counselor uses the Platform in violation of the limited license granted herein or uses the Platform in any way not expressly permitted by this Agreement. All notices under this Agreement will be in writing and sent to the recipient’s address set forth during account creation and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each party agrees that it will not, without prior written consent of the other, issue a press release regarding their business relationship. Notwithstanding anything herein to the contrary, Upon receiving prior written approval of the Counselor, HopeCheck may identify Counselor and the relationship between HopeCheck and Counselor in HopeCheck’s marketing collateral, website, and other promotional and marketing materials. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement will be governed by the laws of the State of Florida without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in Collier County, Florida and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
