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A. These terms and conditions for services (these "Terms") are the only terms that govern the provision of services by Behavioral Cents, LLC ("Behavioral Cents") to you (“Participant").
B. These Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
Behavioral Cents shall provide the services to Participant as described herein (the "Services") in accordance with these Terms.
This is an online program designed to be completed in 12 sessions. The course includes readings, videos, and interactive exercises. If your payments are up-to-date, you will have access to these videos and exercises for the lifetime of the course. You may only terminate this Agreement during the first 2 weeks of the online program, counted from the date of your first payment. After that date, you acknowledge and agree that you shall pay the full payments for the online course.
4. PARTICIPANT’S OBLIGATIONS
A. Participant shall cooperate with Behavioral Cents in all matters relating to the Services.
B. Participant acknowledges and consents to participating in Group sessions supporting the online program when the Group sessions are offered. These Group sessions will be held via phone or via the Zoom or Kajabi or other platforms on a weekly or bi-weekly basis.
C. Proprietary products, including but not limited to a large journal and a mini journal, may be sold to Participants as part of the program. The exercises for the large journal will also be available in electronic form as part of the online program.
D. Participant may be required to purchase the book To Buy or Not to Buy, Why We Overshop and How to Stop by Dr. April Benson. The book is available here.
E. Participant shall respond promptly to any Behavioral Cents request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Behavioral Cents to perform Services in accordance with the requirements of this Agreement.
F. Participant shall provide such Participant materials or information as Behavioral Cents may reasonably request to carry out the Services in a timely manner and ensure that such Participant materials or information are complete and accurate in all material respects;
5. PARTICIPANT’S ACTS OR OMISSIONS
If Behavioral Cents' performance of its obligations under this Agreement is prevented or delayed by any act or omission of Participant, Behavioral Cents shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Participant, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. FEES AND EXPENSES; PAYMENT TERMS
A. In consideration of the provision of the Services by Behavioral Cents and the rights granted to Participant under this Agreement, Participant shall pay the fees set forth at registration.
B. Participant acknowledges and agrees that the online program will be available to Participant once payment has been received. If you pay in installments and an installment is not received, your access will be terminated until your payments are up-to-date.
Participant shall make all payments hereunder in US dollars by the specified means. 7. TAXES
Participant shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Participant hereunder.
8. INTELLECTUAL PROPERTY
All intellectual property rights in the materials provided by Behavioral Cents, including the intellectual property rights therein (copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights) (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Participant under this Agreement or prepared by or on behalf of Participant in the course of participating in the online program, including feedback (collectively, the "Deliverables") shall be owned by Behavioral Cents.
9. CONFIDENTIAL INFORMATION
A. All non-public, confidential or proprietary information of Behavioral Cents, including, but not limited to, materials made available to Participant (collectively, "Behavioral Cents’ Confidential Information"), disclosed by Behavioral Cents to Participant, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Participant without the prior written consent of Behavioral Cents. Information that Participant discloses to Behavioral Cents that Participant considers confidential shall be so marked as “Participant Confidential Information.” Confidential Information does not include information that is:
(i) in the public domain;
(ii) known to the receiving party at the time of disclosure; or
(iii) rightfully obtained by the receiving party on a non-confidential basis from a third party.
B. Behavioral Cents agrees to use Participant Confidential Material only to render the Services and deliver the Deliverables. Participant agrees to use the Behavioral Cents’ Confidential Information only to make personal use of the Services and Deliverables. Participant shall not disclose, distribute or share Behavioral Cents’ Confidential Information with any third parties.
C. Either party shall be entitled to injunctive relief for any violation of this Section.
A. All information shared by Participants in the Group sessions is private and confidential and shall not be disclosed, distributed or shared outside of the Group sessions.
B. Access to the online program also provides access to a Private Community. You agree that all information shared in that community will be considered private and confidential and shall not be disclosed, distributed or shared outside of the Private Community. You acknowledge and agree that while Behavioral Cents provides a privacy agreement for the Community at login to remind all users of these terms, Behavioral Cents does not control and takes no responsibility for the actions of users in the Community.
C. All Participants shall be required to upload their journal entries, which shall not be shared by Behavioral Cents with other Participants absent written consent.
11. REPRESENTATIONS & WARRANTY; EXCLUSION
A. Subject to Section 12, Behavioral Cents warrants to Participant that it shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. BEHAVIORAL CENTS MAKES NO WARRANTY AS TO RESULTS TO BE ATTAINED BY ATTENDING OUR PROGRAM OR USING OUR MATERIALS.
B. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH HEREIN, BEHAVIORAL CENTS MAKES NO WARRANTY WHATSOEVER REGARDING THE SERVICES, INCLUDING ANY [(a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. PARTICIPANT ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY BEHAVIORAL CENTS, OR ANY OTHER PERSON ON BEHAVIORAL CENTS' BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION OF THIS AGREEMENT.
C. Participant acknowledges and agrees to the following: The Services are limited to education and coaching regarding Overshopping. Education and coaching are not medical, mental health, or any other type of health service. They are not psychotherapy or mental health counseling. The Services do NOT include any diagnosis or treatment of, or advice regarding, any medical or mental health condition or illness. Education and coaching cannot substitute for and are not alternatives to medical or other healthcare diagnosis and treatment when a medical or mental health condition or illness is present. Individuals are welcome to seek diagnosis, treatment, and advice regarding medical or mental health conditions or illnesses from physicians, psychotherapists, and other licensed healthcare professionals.
12. LIMITED LIABILITY
IN NO EVENT SHALL BEHAVIORAL CENTS BE LIABLE TO PARTICIPANT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BEHAVIORAL CENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL BEHAVIORAL CENTS'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO BEHAVIORAL CENTS.
THE REMEDIES SET FORTH IN SECTION 11(C) SHALL BE THE PARTICIPANT'S SOLE AND EXCLUSIVE REMEDY AND BEHAVIORAL CENTS’ ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION.
In addition to any remedies that may be provided under this Agreement, Behavioral Cents may terminate this Agreement with immediate effect upon written notice to Participant, if Participant:
A. fails to pay any amount when due under this Agreement and such failure continues for ten (10) consecutive days after Participant's receipt of written notice of nonpayment;
B. has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
C. becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
No waiver by Behavioral Cents of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Behavioral Cents. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15. FORCE MAJEURE
Behavioral Cents shall not be liable or responsible to Participant, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Behavioral Cents including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or Internet Service Providers and platforms or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of thirty (30) consecutive days, Participant shall be entitled to give notice in writing to Behavioral Cents to terminate this Agreement.
Participant shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Behavioral Cents. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Participant of any of its obligations under this Agreement.
17. RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18. NO THIRD-PARTY BENEFICIARIES
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
19. GOVERNING LAW
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
20. SUBMISSION TO JURISDICTION
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the state courts of the State of New York in each case located in the county of Westchester, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law and that the prevailing party shall be entitled to recover, without objection from the non-prevailing party, and in addition to any other damages or award, all reasonable legal costs and fees associated with the action.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses provided by Participant to Behavioral Cents, and for Behavioral Cents, care of Amy B. Goldsmith, Tarter Krinsky & Drogin, LLP, 1350 Broadway, New York, NY 10018 or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email to Carrie Rattle [email protected] and Amy Goldsmith [email protected] (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement.
24. AMENDMENT & MODIFICATION
This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.