lifespeak spark

Terms & Conditions

Last Updated:  December 5th, 2023

PLEASE READ THESE TERMS AND CONDITIONS OF USE (“TERMS AND CONDITIONS”) CAREFULLY. THESE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU (“you”, “your”, “Customer”) AND LIFESPEAK INC.(“we” “us” “our” or “LifeSpeak”). THESE TERMS GOVERN YOUR ACCESS TO AND USE OF THE PRODUCT. BY SIGNING UP FOR AN ACCOUNT, OR BY USING THE PRODUCTS, PRODUCT OR OTHERWISE USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS (INCLUDING ANY LINKED DOCUMENTS REFERRED TO IN THESE TERMS AND CONDITIONS), AS REVISED FROM TIME TO TIME. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, YOU MUST NOT ACCESS OR USE THE PRODUCT. IF YOU ARE DISSATISFIED WITH THESE TERMS OR ANY OTHER TERMS, CONDITIONS, RULES, POLICIES, GUIDELINES OR PRACTICES APPLICABLE TO THE PRODUCT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESS TO AND USE OF THE PRODUCT, AND ALL OTHER ASPECTS OF OUR SERVICES.

Terms and Conditions

  1. DEFINITIONS AND RELATED CONCEPTS
    1. Actual Launch Date: Is the date when access to the Product is turned on and when billing will begin.
    2. Affiliates are any entity controlling, controlled by, or under common control, where “control” means direct or indirect ownership or control of at least fifty percent (50%) of the equity or beneficial interest of such entity, or possession, directly or indirectly, of the power to otherwise direct or cause the direction of the management and policies of the subject entity.
    3. Change of Control means (i) the sale, lease or exchange of all or substantially all of assets; or (ii) a merger, consolidation, reorganization, arrangement or similar transaction providing for the acquisition of the direct or indirect ownership in the aggregate of more than fifty percent (50%) of all outstanding voting shares or similar equity interests.
    4. Product means LifeSpeak products and services, as outlined above, including LifeSpeak’s wide range of health and wellness related videos and related materials together with services including, but not limited to, support, reporting and communications connected with the delivery of the Product.
    5. Eligibility File means those files that detail the Members who will have access to the purchased Product. The file details will be mutually agreed to with you during the implementation process. Depending on the Products purchased, you may or may not need to provide an Eligibility File.
    6. Eligibility File Periodicity: If you provide us an Eligibility File, you will need to tell us how often you will send one. Your options include monthly, quarterly or annually.
    7. Initial Term: The Initial Term is thirty-six (36) months and begins on the Actual Launch Date.
    8. Invited Members: If your purchased Wellbeats products and if the Invited Members feature is enabled by you, Members may also invite other individuals to access the Wellbeats Products.  These invited individuals are called “Invited Members”.
    9. Members: Members are any individuals for whom access to the Product is purchased by you.
    10. Renewal Term. Each extension of these Terms and Conditions will be a Renewal Term.
    11. Terms of Service. Terms of Service means additional terms, if any, specific to the Product being purchased before being allowed access.
  1. SERVICES AND SUPPORT.
    1. LifeSpeak designs, creates, produces and delivers a wide range of Products. LifeSpeak also provides a range of related services including, but not limited to, support, reporting and communications connected with the delivery of the Product described in your proposal.
    2. LifeSpeak will provide commercially reasonable support for the Product to you and your Members at no additional charge.
    3. LifeSpeak will make the Product available to the Members twenty-four (24) hours a day, seven (7) days a week, except for planned downtimes that may occur during scheduled maintenance windows that can last up to eight (8) hours.
    4. LifeSpeak is not responsible for any unavailability caused by circumstances beyond our reasonable control including failure caused by third-party providers.
  1. TERM AND TERMINATION
    1. After the Initial Term, these Terms and Conditions will automatically renew for successive twelve (12) month Renewal Terms unless you provide written notice of termination to us thirty (30) days in advance of the expiration of the then-current term.
    2. Unless otherwise set out in these Terms and Conditions, these Terms and Conditions will remain in effect should LifeSpeak or you undergo a Change of Control event.
  1. PROPRIETARY RIGHTS.
    1. You acknowledge that LifeSpeak (or LifeSpeak’s licensors) own all intellectual property and proprietary rights to the Product and services, including without limitation all artwork, Marketing Materials (as defined below), templates, graphics, scripts, audio tracks, music, trademarks (including service marks, designs, trade dress, trade names, logos), video feeds, underlying code, copyrights and names used in conjunction therewith, together with all derivatives relating thereto. During the term of these Terms and Conditions, LifeSpeak hereby grants to you a worldwide, non-exclusive, royalty-free license to use and display all marketing and communication resources and materials provided by LifeSpeak, whether such materials are custom or provided through LifeSpeak’s library of communication materials, including any all artwork, graphics, scripts, audio tracks, music, trademarks (including service marks, designs, trade dress, trade names, logos), video feeds, email templates, banners, copy examples, posters, flyers, copyrights and names contained or used in conjunction therewith (the “Marketing Materials”), solely for internal use in connection with your marketing of the Product to Members.
    2. Nothing provided herein shall be construed as an assignment or grant by LifeSpeak of any of our rights to you or your Members.
    3. All trademarks (including service marks, designs, trade dress, trade names, logos) and all associated goodwill existing and arising in the future shall be and remain our property or the property of any third party we licensed it from to provide it to you.
  1. PRODUCT LICENSE.
    1. During the term of these Terms and Conditions, LifeSpeak grants to you and your eligible Members a limited, non-exclusive, non-transferrable, non-sublicensable, non-assignable, non-perpetual, license to access the Product.
    2. This includes streaming of the Product through an application (“App”) or portal (“Website”).
    3. To the extent the Products you purchased require an Eligibility File, you must deliver such a file to LifeSpeak prior to the Actual Launch Date. Each Eligibility File will include the Member details necessary in order for LifeSpeak to provide access to the Product to such Member. The specific file format will be mutually agreed to by you and us during the implementation process prior to the Actual Launch Date. You may amend the eligible Members at any time by delivering a revised Eligibility File to LifeSpeak.
    4. Product may only be used by you or eligible Members.
    5. Neither you nor your Members may broadcast or otherwise use the Product commercially.
    6. LifeSpeak reserves all rights to modify, remove or otherwise change any of the Product provided through the Product, including, for example, from time to time, update classes or packages available through the Product.  We, in our sole discretion and at any time, may discontinue certain classes or third-party providers of classes available through the Product. LifeSpeak shall not make any changes or updates to the Product that results, in LifeSpeak’s reasonable determination, in a material degradation or material reduction of the quality, quantity, functionality, performance or availability of the Product.
    7. Additional fitness and other video packages, including Product provided by third parties, may be made available by LifeSpeak for additional fees. This additional Product will not be provided to your Members and you will not be charged for this Product without your prior written agreement.
  1. USAGE RESTRICTIONS.  You shall not (and you shall not authorize or permit your Members or third parties associated with you) do any of the following.
    1. Translate, disassemble, decompile, decode, reverse engineer, or cause or allow discovery of the source code of the System. “System” means the underlying IT infrastructure used to deliver the Product and any other services to Members.
    2. Remove, obscure, or alter the titles, copyright notices, trademarks, logos, trademark notices, patent notices or other proprietary or restricted rights, notices, affixed to or contained in the System.
    3. Make any claim or representation of ownership or deny or challenge our ownership of the Product.
    4. Use the Product in any manner that violates any local, state/provincial, federal or international law, rule, regulation or ordinance.
    5. Use, copy, modify, or prepare derivative works of our Product.
    6. Disclose, demonstrate, distribute, sell, lease, sublicense, lend, give, share, transfer, assign or otherwise make all or any portion of our Product available to any natural person, corporation, or other entity.
  1. PAYMENT TERMS.
    1. You will be billed based on Threshold or Per Eligibility Per Month (PEPM) billing methods pursuant to the terms below:
      1. Threshold billing is based on a fixed monthly or annual fee for a maximum number of Members for which you originally agreed. When the number of Members accessing the Product exceeds the maximum number allowed, you will automatically be switched over to the PEPM billing method.
      2. With the PEPM billing method you are charged a set fee for each Member you include in the Eligibility File you send to LifeSpeak.
    2. Billing will begin on the Actual Launch Date and payment can be made using Automated Clearing House (ACH) or similar electronic funds transfer. Contact billing@lifespeak.com for details, required forms or any additional billing related questions.
    3. Fees must be paid annually in advance in United States dollars. All payments made by you to LifeSpeak hereunder are non-refundable.
      1. You may be subject to an annualized true-up when usage of the Product exceeds what was purchased.
      2. True-Ups are at the sole discretion of LifeSpeak and, when applicable, will be based on the number of Members who had access to the Product during the previous year.
    4. Payment is due Net 30 days from the date you receive the electronic invoice.
    5. Overdue payments on invoices may be charged interest at the lesser of 1.5% per month (18% per annum) or the maximum interest allowed by law.
    6. Upon 10 days’ written notice to you for failure to make a payment, we may, at our sole discretion, suspend your access to all Product until payment is made or terminate these Terms and Conditions.
    7. If we are required to retain a collection agency or attorney to collect overdue payment, all reasonable collection costs, including attorney fees, are payable by you.
    8. Upon 30 days advance written notice to you and no more than once per calendar year at time of renewal, LifeSpeak may increase our fees.
    9. Any suspension, interruption, or unavailability of your Member’s internet service will not reduce your monthly fee for Product.
    10. You or your Members are responsible for all costs and any other charges or expenses charged by your internet service provider.
    11. Updates to your payment information can be made securely at the following URL: https://wellbeats.formstack.com/forms/billing_payment_authorization
  1. TAXES.
    1. You are responsible to pay any and all foreign, federal, state/provincial, municipal, or other government excise, duty, sales, goods and services, value added, use or occupational taxes or charges now in force or enacted in the future that we may be required to collect or pay for access to the Product provided. This does not include any taxes LifeSpeak owes based on LifeSpeak’s’ own income.
    2. If applicable, we may invoice appropriate amounts for any taxes related to the Product we provide to you, unless you can provide a valid tax exemption certificate authorized by the appropriate taxing authority.
  1. COLLECTION AND USE OF MEMBER DATA.
    1. Members, if applicable, will be required to accept the Terms of Service specific to the Product being purchased before being allowed access. Links to the Terms of Service can be found with each Product option.
    2. Depending on the Product(s) purchased, and if Members expressly consent (which such Members can subsequently withdraw or revoke), LifeSpeak may collect certain information from Members to provide customized Product, including, but not limited to a Member’s first name, last name, email address, user name and password (to set up a registered account for the Product), age, gender, fitness level, fitness goals, and through the continued use of the Product, LifeSpeak will collect information on Members’ use of Product, Member’s preferences, activities and log any additional information input by each Member (collectively “Member Data”).  You covenant and represent that you will provide all notices and obtain all consents required by law, and otherwise applicable to you pursuant to policy and/or contract as a result of the data processing practices contemplated herein.
    3. LifeSpeak will process and use the Member’s Data for the sole and exclusive purpose of providing the Product and improving the Member’s experience.  We will: (a) keep and maintain Member information in strict confidence, using such degree of care as is appropriate and consistent with its obligations under applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose Member Data solely and exclusively for the purpose of providing the Product, such use and disclosure being in accordance with these Terms and Conditions, and applicable law; and, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available Member Data to any other third parties.
    4. Member data may be provided to LifeSpeak approved sub-contractors as needed for delivery of the Product or services to Members.
    5. LifeSpeak may use Member Data in aggregate, non-identifiable form, to evaluate, improve, or otherwise modify the Product.
    6. All information collected from Members will be collected in compliance with applicable law, the LifeSpeak Product being purchased, and these Terms and Conditions.
  1. TECHNOLOGY SECURITY AND BACKUP.
    1. LifeSpeak shall implement and maintain appropriate administrative, physical, organizational, and technical safeguards that are designed to ensure the protection, confidentiality, security, and integrity of the Product and Member Data.
    2. LifeSpeak shall take all reasonable steps to ensure that Member Data is not disclosed, accessed, used, modified, or distributed except to provide the Product to you and your Members.
    3. All Product will be provided through a cloud-based service that has received a recognized independent certification or equivalent independent audit to help ensure the confidentiality, integrity and availability of the Product.
    4. All access and collection of Member Data will be transmitted using recognized encryption methods and all Member Data will be encrypted when in transit and at rest.
    5. LifeSpeak’s practices are to perform full backups of the Product and Member Data daily, with incremental backups throughout the day. Backups are encrypted and then transferred and stored in real time to an offsite storage facility located within the United States or Canada.  Notwithstanding this, LifeSpeak is not obligated to perform such backups and you acknowledge and agree that it is your responsibility to perform your own backups for Products and materials that you wish backed up.
    6. No Member Data will be stored outside of the United States or Canada.
  1. WARRANTIES AND WARRANTY DISCLAIMERS.  We represent and warrant that (a) we use commercially reasonable measures to ensure that the Product will not contain any viruses, worms, Trojan horses, or other malicious code that permits unauthorized access to devices or equipment;  and (c) all professional services, if any, performed by LifeSpeak shall be performed (i)  in a professional, diligent and workmanlike manner. EXCEPT AS SET OUT HEREIN, THE PRODUCT AND ANY OTHER SERVICES ARE PROVIDED “AS IS” AND WE SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE DO NOT WARRANT THAT THE PRODUCT AND OTHER SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT FOR THE FOREGOING WARRANTY, WE STRICTLY DISCLAIM ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, APPLICATIONS, INFRASTRUCTURE OR PLATFORMS. WE DO NOT AND CANNOT CONTROL OR WARRANT THE FLOW OF DATA TO OR FROM OUR OR YOUR NETWORK AND OTHER PORTIONS OF THE INTERNET. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, PERFORMANCE, USAGE, TRADE OR OTHERWISE. WE  MAKE NO WARRANTY OF ANY KIND THAT THE PRODUCT AND OTHER SERVICES, OR ANY RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, OR WILL NOT INFRINGE ANY THIRD-PARTY’S INTELLECTUAL PROPERTY, OR WILL BE OF MERCHANTABLE QUALITY.
  1. LIABILITY.  Neither we nor any of our affiliates or agents shall have any liability whatsoever for any damage, loss, or destruction to any of your systems as a result of the use of the Product.   It is your sole responsibility to take appropriate precautions to protect any computer and other hardware of yours from damage to your software, files, and data as a result of any such virus or other harmful feature. LifeSpeak does not represent, warrant, or covenant that access to our Product will not cause the loss of files or disrupt the normal operations of any equipment, including but not limited to your computers.  For these and other reasons, you acknowledge and understand the importance of backing up all files to another storage mechanism prior to such activities.  You understand and accept the risks if you decide not to back up your files.
  1. LIMITATIONS OF LIABILITY.  LIFESPEAK SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS OR OTHER CAUSE.  EACH PARTY SHALL NOT HAVE ANY LIABILITY TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES, LOSS OF PROFITS, LOSS OF EARNINGS, OR LOSS OF BUSINESS OPPORTUNITIES.  LIFESPEAK SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON FOR DIRECT DAMAGES ARISING FROM OR RELATED TO YOUR USE OF THE PRODUCT, OR LOSS OF INFORMATION OR DATA.  IN NO EVENT SHALL LIFESPEAK BE LIABLE TO YOU FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT IN AN AGGREGATE AMOUNT EXCEEDING THE AMOUNTS ACTUALLY PAID TO US BY YOU IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING SUCH CLAIM.
  1. INDEMNIFICATION.  We will indemnify and defend you from claims, losses or damages relating to or arising out of third-party claims that the Product infringes a third party’s intellectual property rights.  You will indemnify and defend us from third-party claims arising from your or your Members’ use of the Product in violation of these Terms and Conditions, losses or damages relating to or arising out of your breach of these Terms and Conditions, the use or misuse of the Product by you, and any misrepresentation made to Members regarding the Product, or the violation of any applicable law.
  1. SOLE REMEDIES.  Your sole and exclusive remedies are as expressly set forth in these Terms and Conditions.  Certain of the exclusions may not apply if your location does not allow for the exclusion or limitation of implied warranties or does not allow for limitation or exclusion of incidental or consequential damages.  In those locations, the liability of LifeSpeak and our affiliates and agents is limited to the maximum extent such limitations are permitted by law.
  1. MISCELLANEOUS
    1. Relationship of the Parties.  These Terms and Conditions do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between you, your Members and us. Neither party will have authority to contract for or bind the other party in any manner whatsoever
    2. Promotion. By using the Product, you consent to our use of your name, trademark and logo to identify you as one of our representative Customers on our website, social media pages and other electronic or printed promotional materials. You agree to only use approved LifeSpeak advertising materials to promote the Product and make no representations to Members regarding their use or access to the Product.
    3. No Waiver.  The failure or delay of LifeSpeak at any time to require performance of any provision of these Terms and Conditions or to exercise any right provided for herein shall not be deemed a waiver of such provision or such right.  All waivers must be in writing.  Unless the written waiver contains an express statement to the contrary, no waiver by LifeSpeak of any breach of any provision of these terms or of any right provided for herein, shall be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under these Terms and Conditions.
    4. Severability.  If any provision of these Terms and Conditions is held by a court of competent jurisdiction (or arbitrator pursuant to 16(g) below) from which no appeal can be or is taken to be contrary to law, or invalid for any other reason, the provision shall be modified by the court or arbitrator so as to accomplish the intent and objectives of the parties to the fullest extent permitted by law and the remaining provisions of these Terms and Conditions shall remain in effect.  If the court or arbitrator is not able to craft such an alternative provision, then the remainder of these Terms and Conditions shall be construed in a way that most closely reflects the original intent of the parties.
    5. Assignment.  You may sell, assign, license or sublicense or otherwise convey in whole or in part, by operation of law or otherwise, to any third party these Terms and Conditions or any rights granted under these Terms and Conditions; provided however that you may do so to pursuant to a Change of Control.  Notwithstanding the foregoing, to the extent such Change of Control results in a competitor of LifeSpeak gaining controlling interest in you, then no assignment, license or sublicense may be made and we may immediately terminate you and your Members’ access to Product with no refund or discount owing to you in respect of any time left in the current term.
    6. Governing Law.  These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Minnesota, United States and the federal laws of the United States.
    7. Disputes: If any dispute occurs between the parties hereto with respect to any matter, including the interpretation, construction and performance of the rights and obligations of each party hereto, the same which cannot be resolved by the provisions hereof or by Agreement of the parties, the matter in dispute shall be resolved by arbitration. Any party to the dispute may at any time require arbitration by given written notice thereof to the other party hereto setting out in reasonable detail the issue in dispute. The dispute shall be determined by a single arbitrator mutually appointed by the parties provided that the parties can agree upon one (1) arbitrator within ten (10) days of the receipt of the notice. Failing such mutual appointment, one (1) arbitrator shall be appointed by a Judge of the Ontario Superior Court of Justice. The arbitration shall proceed in accordance with the provisions of the Arbitrations Act (Ontario). The arbitrator shall make his award as soon as possible, and in any event, not more than three (3) months after having been called on to act by notice in writing, unless agreed to by the Parties hereto. There shall be an appeal from the award of the arbitrator in accordance with the provisions of the Arbitration Act (Ontario).   You hereby irrevocably waive to the fullest extent permitted by law any and all rights to trial by jury in any legal proceeding arising out of or relating to these Terms and Conditions or the transactions contemplated hereunder.
    8. Force Majeure.  Other than in relation to payment obligations and obligations of confidentiality and intellectual property ownership, neither party shall be liable or deemed in default for any delay or failure in performance or interruption of service resulting directly or indirectly from acts of God, civil or military authority, pandemics, acts of public enemy, war, riots, acts of terror, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements or any other cause beyond our reasonable control.
    9. Survival of Limitations.  All representations, warranties, indemnifications, and limitations of liability shall survive termination; any other obligations or the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.  All obligations to pay any amounts owed prior to the effective date of termination will survive termination.
    10. Notices. Any and all notices, offers, acceptances, requests, certifications, and consents provided for in this Agreement shall be given and be deemed to have been given when personally delivered against a signed receipt or mailed by registered or certified mail, return receipt requested, to the last address which the addressee has given to the other Party. The address of each Party is set out below, and each Party agrees to notify the other Party of any change of address.  For questions concerning these LifeSpeak Terms and Conditions, please contact LifeSpeak via postal letter or email as noted below.

LifeSpeak, Inc.
ATTN: Legal
1660 South Highway 100
Suite 590
St. Louis Park, MN 55416
Legal@lifespeak.com

 

  1. Entire Agreement.  These Terms and Conditions contain the entire understanding and agreement between you and us with respect to the subject matter hereof and supersedes all previous communications, negotiations and agreements, whether oral or written between the parties with respect to such subject matter.  No modification, amendment or wavier of any provision of this agreement shall be effective unless included in a written document signed by a representative of both parties.

 

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