Tiny Habits® Certification Program Terms and Conditions and Program Guidelines v9.14.20
Tiny Habits Certification Program Terms and Conditions
Capitalized words that are not defined in these Terms have the meanings set forth in the Guidelines.
1. Licenses.
(a) Instructor Materials and Student Materials. Provided you have paid all applicable Certification and License Fees, THLLC hereby grants you a non-exclusive, non-transferable license, for as long as you are a Tiny Habits Certified Coach, to (i) use the Instructor Materials solely to provide Coaching to your Clients, however the portions of the Instructor Materials that are designated as THLLC Confidential Information may not be used or disclosed to any third party (including Clients); and (ii) use, reproduce, modify and create Derivatives of the Student Materials solely for the purpose of adapting them to and using them in your Coaching, and distribute such Student Materials and Derivatives (if applicable) to each Client who participates in Coaching with you. All Derivatives are subject to review and approval by THLLC prior to use by you in your Coaching. You are not permitted to use the Instructor Materials, the Student Materials or any other THLLC Content to create a separate product about habits (such as an app or a workbook) or to create your own training solution.
(b) Trademark License. Provided you have paid all applicable Certification and License Fees, THLLC hereby grants you a personal, non-exclusive, non-transferable license, for as long as you are a Tiny Habits Certified Coach and are current in the payment of Certification and License Fees, to use the Trademarks in marketing your Coaching provided that such use is in accordance with THLLC’s then-current guidelines for using the Trademarks. Such use must reference the Trademarks as being owned by THLLC. You acknowledge and agree that all use of Trademarks shall inure to the benefit of and be on behalf of THLLC. Nothing in this Agreement grants you ownership or any rights in or use of Trademarks except in accordance with this license. THLLC will have the exclusive right to own, use, hold, apply for registration for, and register the Trademarks during and after the term of this Agreement. You will not (i) alter or remove any Trademark included in the Instructor Materials or the Student Materials, (ii) attach any additional trademark or trade designation to any Instructor Materials or Student Materials, or (iii) use any Trademark as part of your trade name.
2. Confidentiality. You agree to hold all THLLC Confidential Information in strict confidence and not to disclose such THLLC Confidential Information to any third parties (including any of your Clients) unless expressly authorized to do so by THLLC in writing. You will not use such THLLC Confidential Information for any purpose other than to enhance your performance under this Agreement as a Tiny Habits Certified Coach. Without limiting the foregoing, you will not use the THLLC Confidential Information to create a separate product about habits (such as an app or a workbook) or to create your own training solution. The above restrictions on use and disclosure of THLLC Confidential Information shall not apply to any portion of the THLLC Confidential Information which (i) has become publicly known through no wrongful act of you or any third party, or (ii) which becomes known to you from a third party who was free of any duty of confidentiality. Your obligations set forth in this section shall survive the termination or expiration of the Agreement.
3. Payment. Fees, payment schedule and other payment terms for the Program are set forth on Exhibit A of the Guidelines. All fees must be paid in United States dollars and are exclusive of applicable sales, use or similar taxes, if any, for which you are obligated to pay THLLC.
4. Intellectual Property.
(a) THLLC Content. THLLC shall retain ownership of all THLLC Content and all intellectual property rights therein. No rights to such THLLC Content are granted to you other than as expressly set forth in these Terms. You must not alter or obscure any copyright or other proprietary notices contained in the THLLC Content. You are not permitted to use, reproduce or distribute the THLLC Content (or any portion thereof) except as expressly set forth in this Agreement.
(b) Feedback and Derivatives. You hereby assign all rights, title and interest in and to the Feedback and Derivatives, including all intellectual property rights therein, to THLLC and agree to assist THLLC in any manner necessary to perfect such assignment. Specifically, you agree to execute any documents requested by THLLC to provide THLLC the right to own, use and protect such Feedback and Derivatives. You hereby appoint THLLC as your attorney-in-fact for the sole purpose of executing those consents and documents necessary to secure for THLLC these rights.
5. Disclaimer of Warranties. THLLC makes no warranties, express, implied or statutory, as to any matter whatsoever under this Agreement. In particular, any and all warranties of merchantability, fitness for a particular purpose and noninfringement of third party rights are expressly excluded.
6. Limitation of Liability. To the maximum extent permitted by applicable law, in no event is THLLC liable to you for (i) any indirect, incidental, special, punitive or consequential damages or lost profits arising out of or in connection with this Agreement, regardless of the form of the actions or the basis of the claim, whether based on breach of contract, breach of warranty or, regardless of whether THLLC has been advised of the possibility of such damages, or (ii) aggregate, cumulative liability of more than $500.
7. Changes to Agreement. THLLC reserves the right to change the terms of these Terms or the Guidelines (including the fees contained in Exhibit A of the Guidelines) at any time. THLLC will provide you with thirty (30) days’ prior written notice of any such changes. If you object to such changes your sole remedy is to terminate the Agreement. If you do not object to such modified terms within the thirty (30) day notice period you are deemed to have agreed to them.
8. Term and Termination.
(a) Term. The Agreement is effective as of the date you agree to it or the date you begin the Program, whichever is earlier, and remains in effect for as long as you are participating in any portion of the Program (the Masterclass, the Apprenticeship or as a Tiny Habits Certified Coach) and are current in the payment of Certification and License Fees.
(b) Termination. THLLC may terminate the Agreement or cancel the Program at any time for any reason, provided, however, that if THLLC terminates the Agreement for any reason other than your material breach or your failure to satisfactorily fulfill the requirements of the Masterclass or the Apprenticeship THLLC will refund to you any prepaid, unused Certification and License Fees.
(c) Effect of Termination. Sections 2 (Confidentiality), 4 (Intellectual Property), 5 (Disclaimer of Warranties), 6 (Limitation of Liability), 8(c) (Effect of Termination) and 9 (General) of this Agreement survive termination or expiration of this Agreement. Upon termination or expiration of this Agreement you must immediately cease identifying yourself as a “Tiny Habits Certified Coach,” cease using the THLLC Content, cease offering your Coaching using the Tiny Habits method or materials, and cease all use of the Trademarks. THLLC is not responsible for any costs incurred by you in connection with either this Agreement or its termination.
9. General. Any claim, dispute or controversy relating to this Agreement will be governed by the laws of the State of California without giving effect to any choice of law principles. Any such claim, dispute or controversy must be brought in a court of competent jurisdiction, federal or state, located within Sonoma or San Francisco County, California, and the parties hereby irrevocably consent to personal jurisdiction and venue in such court. The parties are independent contractors and neither party is an employee, agent, servant, representative, partner, or joint venturer of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other. This Agreement may not be assigned by you, even by operation of law, without the express written permission of THLLC. Any attempt to do so will be null and void. This Agreement contains the complete and exclusive statement of the mutual understanding of the parties and merges all prior discussions, both oral and written, between the parties related to the subject matter hereof. The failure of either party to require performance by the other party of any provision shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Except as otherwise expressly provided in this Agreement, this Agreement may only be changed by mutual written agreement of authorized representatives of the parties.
Tiny Habits Certification Program Guidelines
Please carefully read these Tiny Habits Certification Program Guidelines (“Guidelines”) and the Tiny Habits Certification Program Terms and Conditions (“Terms”). Together the Guidelines and Terms (collectively, the “Agreement”) set forth the terms between you and Tiny Habits LLC (“THLLC”) related to your participation in the Tiny Habits Certification Program (“Program”).
To become a Tiny Habits Certified Coach, you need to successfully complete three steps sequentially: (1) successfully fulfill the requirements of the Masterclass, (2) complete the Apprenticeship, (3) activate your license as a Tiny Habits Certified Coach. Please note that your participation in the Masterclass and the Apprenticeship does not guarantee you will obtain certification as a Tiny Habits Certified Coach.
1. Definitions. As used in these Guidelines and in the Terms, the words below are defined as follows:
“Apprenticeship” is the portion of the Program during which you will train Tiny Habits participants under the direct supervision of either BJ Fogg or Linda Fogg-Phillips or another trainer designated by THLLC.
“Certification and License Fee(s)” means the fees set forth on Exhibit A which are payable by you to THLLC in consideration for the licenses and other benefits described in the Agreement.
“Client(s)” means people who have requested your Coaching and are being coached by you in the Tiny Habits method after you have become a Tiny Habits Certified Coach.
“Coaching” means any coaching you provide in which you teach the Tiny Habits methods.
“Derivative(s)” means any modifications to or derivative works made by you (or any third party at your request) to any THLLC Content or any other Tiny Habits proprietary content you have learned prior to, during or after the term of this Agreement (such as BJ Fogg’s introductory document, videos, spreadsheets, materials posted online, seminars, books, etc.).
“Feedback” means any feedback and suggestions about problems, changes or improvements to the THLLC Content or the Tiny Habits method more generally.
“Instructor Materials” means materials provided to you by THLLC in written, visual, oral or digital form to educate you and assist you in providing Tiny Habits coaching including any such materials made available to you by or on behalf of THLLC in connection with ongoing training, video conferences, discussions or otherwise during the Masterclass, the Apprenticeship, or once you become a Tiny Habits Certified Coach.
“Masterclass” means the initial series of classes you will take as part of the Program.
“Student Materials” means the written, printed, visual, video, and digital materials developed by or for THLLC and provided to you for your use in providing Coaching to your Clients.
“THLLC Confidential Information” means written, visual, printed, video, oral or digital materials provided to you as part of the Program that are either designated at the time of disclosure as confidential and proprietary to THLLC or which, based on the circumstances of disclosure, should reasonably be understood to be confidential. Without limiting the foregoing, the Instructor Materials and all information about Tiny Habits participants that you received during the Apprenticeship is THLLC Confidential Information.
“THLLC Content” means all written, visual, printed, video, oral and digital materials made available to you as part of the Program including the Instructor Materials, the Student Materials and the THLLC Confidential Information.
“Tiny Habits Certified Coach” refers to an individual who has both (i) successfully completed all steps in the Program as described in these Guidelines and remains in good standing, and (ii) is current in the payment of the Certification and License Fees.
“Tiny Habits Greenhouse Platform” means the THLLC proprietary email platform that THLLC and its Tiny Habits Certified Coaches use to communicate with Tiny Habits participants, including your Clients.
“Trademark(s)” means THLLC’s Tiny Habits trademarks, service marks and logos.
2. The Masterclass. In the Masterclass you will receive training in the THLLC methodologies over the course of five to seven classes of 60 to 90 minutes each. The specific dates and times for your Masterclass will be made available to you following your enrollment. If you are participating in the Masterclass online, you must have the ability to use Zoom from a desktop or laptop computer.
Successful completion of the Masterclass is required before beginning the Apprenticeship.
3. Apprenticeship. During the Apprenticeship you will conduct supervised coaching of Tiny Habits participants over email. You understand that your conduct in your capacity as an apprentice reflects on THLLC and the Tiny Habits brand and reputation. At all times in your interaction with Tiny Habits participants, you agree to conduct yourself in strict accordance with the instructions provided to you during the Masterclass and the Apprenticeship. You further agree to conduct yourself in a professional and courteous manner in all of your interactions with Tiny Habits participants, including by refraining from using profanity or suggestive/sexual language. You are not permitted to contact any Tiny Habits participants for any purpose other than as required by the Apprenticeship or expressly authorized by THLLC.
4. Tiny Habits Certified Coach. Following successful completion of both the Masterclass and the Apprenticeship, you will receive an activation code for activating the license described in Section 1 of the Terms. You must activate your license within two weeks of receiving the activation code. Once your license has been activated, you may begin offering Coaching to Clients on the terms set forth below and elsewhere in this Agreement.
(a) Authorization. Subject to the Trademark license set forth in Section 1(b) of the Terms, upon successful completion of the Masterclass and Apprenticeship and payment of the Certification and License Fees you may identify yourself as a “Tiny Habits Certified Coach.” You may advertise your Coaching using the written and digital materials provided by THLLC without modification. THLLC has the right to review and approve any of your advertising, and you agree to promptly cease and/or modify (as requested by THLLC) any such advertising that THLLC deems detrimental to or inconsistent with THLLC’s brand or image.
(b) Certification and License Fees. In order to be a Tiny Habits Certified Coach, you must pay to THLLC or its designee the fees set forth on Exhibit A. The Certification and License Fees for the initial year are included in your payment for the Masterclass and Apprenticeship. Thereafter, your license will automatically renew on an annual basis unless you provide THLLC with at least thirty (30) days’ prior notice that you do not wish to renew. For each renewal term, you must pay the Certification and License Fees annually in advance. If you fail to pay the annual Certification and License Fees and allow the license to lapse and later wish to reactivate it, (i) if the lapsed period is less than six (6) months, you will be required to pay a $250 reactivation fee as well as the then-current annual Certification and License Fees for the current year, and (ii) if the lapsed period is six (6) or more months, you will be required to retake the Masterclass, and the Apprenticeship, and pay the fees for Masterclass and Apprenticeship as well as the then-current annual Certification and License Fee for the current year.
(c) Coaching Structure and Learning Environment. All Coaching must be presented in one of the following formats: live face-to-face settings, over telephone or by teleconference (including video conferencing platforms such as Skype, Zoom, or Google hangouts), through the Tiny Habits Greenhouse Platform, or by live webinar. You may follow up with Clients via text or email, but your Coaching must not be provided solely by text or email, except when using the Tiny Habits Greenhouse Platform. Except as provided in Section 3(e) below, Coaching may not be recorded by you, your Clients or any third party. You are responsible for ensuring that your Coaching is not recorded by any third party. You are responsible for ensuring that the Coaching and the Student Materials are only available to Clients (not to the general public).
Your Coaching must be consistent with the content and instruction provided to you by THLLC and conducted in a professional, high-quality manner.
(d) Greenhouse Email Platform. Your use of Greenhouse is subject to the terms available at TinyHabits.com/greenhouseterms.
(e) THLLC Zoom Account. THLLC maintains a Zoom account for Tiny Habits Certified Coaches to provide recorded video Coaching (“Recorded Coaching”). Authorization to use the Zoom account for Recorded Coaching is granted on a case-by-case basis. Any Recorded Coaching you have previously done or that you make during the term of the Agreement is deemed a Derivative and may be used by THLLC for any purpose. You irrevocably grant to THLLC the non-exclusive, worldwide, royalty-free, perpetual right and license to use your likeness and any and all of your content contained in such Recorded Coaching in any manner, form or medium whatsoever. You agree not to include any third party content or other intellectual property in your Recorded Coaching. On a case-by-case basis, THLLC may provide you with a link to your Recorded Coaching so that you can post the Recorded Coaching on a website, however THLLC reserves the right to charge you a fee for this.
(f) Other Third Party Platforms. THLLC may maintain accounts on other third party platforms (“Third Party Platform(s)”) for use by THLLC and its Tiny Habits Certified Coaches. For example, currently THLLC maintains an account with Slack which provides a platform for discussions between and among THLLC and Tiny Habits Certified Coaches. In connection with your use of such Third Party Platforms, (i) you agree not to provide any personally identifiable information regarding your Clients, any other Tiny Habits participants or any third party, and (ii) you agree that the content you contribute to such Third Party Platforms may be used by THLLC for any purpose without additional compensation to you. Your use of such Third Party Platforms may be subject to additional terms provided by the Third Party Platform provider. THLLC manages these Third Party Platforms and may provide guidance for acceptable use of such Third Party Platforms on the applicable Third Party Platform. THLLC reserves the right to remove users, including you, from such Third Party Platforms at any time if THLLC determines that any user is not following such guidance or for any other reason.
(g) Insurance. As a Tiny Habits Certified Coach you agree to maintain appropriate insurance in accordance with the laws and practices in your jurisdiction covering your activities as a Tiny Habits Certified Coach. You will name THLLC as an additional insured and upon THLLC’s request will provide evidence of such insurance. You will maintain such insurance for as long as you remain a Tiny Habits Certified Coach.
(h) Medical Issues. You are not permitted to provide medical advice as a Tiny Habits Certified Coach. For medical issues you should direct your Clients to contact their own physician or, for urgent issues, to call 911 or go to the nearest emergency room.
(i) Updates to THLLC Materials. THLLC may update the THLLC Materials from time to time. If THLLC provides you with updated THLLC Materials, you agree to promptly begin using such updated information and you agree to promptly begin use of such updated information and materials and discontinue use of outdated information and materials.
EXHIBIT A: Fees and Payment
Masterclass, Apprenticeship and first year Certification and License Fee
Masterclass, Apprenticeship and first year Certification and License Fee
Fee: $2497 in one payment, or according to the payment plan on the enrollment form.
Payment Deadline: Prior to start of your Masterclass
Other Payment Terms: Nonrefundable.
If you need to reschedule or make up a Masterclass or Apprenticeship class session the cost is $120/session.
License Fee (after the initial year)
License Fee (after the initial year)
Fee: $500 per year in one payment.
Payment Deadline: Annually in advance
Other Payment Terms: Nonrefundable.
The license automatically renews each year unless you provide THLLC with a least thirty (30) days’ prior written notice that you do not intend to renew.
OPTIONAL: Tiny Habits Coach email account and Greenhouse account with a $25 per month subscription fee
TINY HABITS TRAINING LLC HOSTED SERVICES AGREEMENT
Tiny Habits Coach email account and Greenhouse account
THIS TINY HABITS TRAINING LLC HOSTED SERVICES AGREEMENT (“Agreement”) is entered into by and between Tiny Habits Training LLC(“THTL”) with an address at 1431 Yew Circle, Healdsburg, CA 95448 and Tiny Habits Certified Coach / Coach-in-Training.
1. DEFINITIONS
“Data” means all electronic data and information submitted or provided by You or Your Habiteers to the Services.
“Feedback” means feedback or suggestions about the features, functions, or operation of the Services.
“Habiteer” means an individual who has enrolled with You to participate in a weeklong Tiny Habits coaching session over email, and to whom You have provided a link to access the Services.
“Protected Information” means (i) data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, (ii) any patient medical or other health information protected by the Health Insurance Portability and Accountability Act or similar federal and state laws, (iii) Cardholder Data, as that term is defined in the PCI standards; (iv) information subject to regulation or protection the Gramm-Leach-Bliley Act (or related rules or regulations); or (v) any other sensitive or personally identifiable information that is subject to specific regulations or laws that impose increased protections and/or obligations with respect to handling that type of information.
“Services” means THTL’s hosted software application primarily for the management and delivery of THTL content to Habiteers.
“Subscription Fee(s)” means THTL’s then-current fees for the Services. THTL may increase its Subscription Fees from time to time upon fifteen (15) days’ prior written notice to You. Current subscription fees are $25 (twenty-five dollars) per month for use of an assigned Tiny Habits Coach email account and a Greenhouse account. During the Apprenticeship phase of the training, a Tiny Habits Coach email account and a Greenhouse account will be assigned to Coach for use during the Apprenticeship at no charge. After completion of the Apprenticeship, a Coach may have the option of purchasing a subscription for the use of a Tiny Habits Coach email and Greenhouse account, however, they are not required to do so if the Coach will not be delivering the email based 5-Day Tiny Habits program.
“Subscription Term” means the term for which you have purchased a subscription to use the Services,.“Term” means has the meaning set forth in Section 5.1.
2. SUBSCRIPTION TERMS
2.1. Subscription Services. Subject to Your compliance with the terms and conditions of this Agreement, THTL hereby grants You a non-exclusive, non-transferable, non-assignable right (i) to access and use the Services during the Subscription Term, and (ii) to provide a confidential link to the Services to Your Habiteers in order for such Habiteers to enroll to receive emails generated by the Services during the time they are receiving Tiny Habits coaching from You.
2.2 Usage Limits. Coach may not use the Services for more than one thousand (1,000) Habiteers per week.
2.3 Tiny Habits Coach Certification. In order to use the Services, You must have a current, fully paid agreement in good standing with THTL certifying You as a Tiny Habits Coach (“Certification Agreement”) at all times during the Subscription Term. To the extent Your Certification Agreement prohibits coaching via email, such limitation is deemed amended solely to permit You to use the Services in connection with Your coaching. You are not permitted to provide coaching services via email in any other manner. If Your Certification Agreement is terminated at any time during the Subscription Term, Your access to the Services will also terminate.
3. YOUR OBLIGATIONS
3.1. Services Access. You are responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other services needed to access the Services. As part of the initial registration process, You will create a username and password, which You agree to keep confidential and not share with any third party. You agree to immediately notify THTL of any suspected or unauthorized use of Your account of which You become aware. You understand that THTL will have access to, and may review, all content You enter into the Services.
3.2. Restrictions. You may not use the Services other than as authorized in this Agreement or the instructions or guidelines that appear in the Services. Without limiting the generality of the foregoing, You may not (i) sell, resell, rent, lease, sublicense, distribute, time-share, modify, translate or create derivative works of the Services; (ii) make the Services available to any third party (except to the limited extent Your Habiteers interact with the Services); (iii) use the Services for unlawful or illegal purposes or to store or transmit material in violation of third party intellectual property, publicity, or privacy rights; (iv) access the Services for purposes of monitoring their availability, performance or functionality or for any other benchmarking or competitive purposes; (v) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the Services or to interfere with their functionality; (vi) attempt to disable or circumvent any security features of the Services, or permit unauthorized access to the Services; (vii) send or store material containing viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents or programs; or (viii) create a competitive product.
The Services may contain forum areas where You may discuss issues related to Tiny Habits coaching with other Tiny Habits coaches. You will comply with all discussion guidelines provided by THTL in such forums. You will not disclose any personally identifying information regarding Your Habiteers in such forums.
3.3. Messaging Requirements. The Services will allow you to send email messages to Your Habiteers. You will be able to customize certain portions of these messages, and other portions of the email messages will contain content from THTL that You cannot change. With respect to any customizeable portions of email messages sent through the Services, You agree that (i) You will use the Tiny Habits name and trademark in accordance with the Tiny Habits trademark guidelines provided to You, (ii) You will not disparage THTL or the Tiny Habits program or methodology in any way, and (iii) You will communicate in a professional manner that at all times reflects favorably on THTL and the Tiny Habits program.
3.4. Compliance with Laws. You will comply with all applicable laws and regulations in connection with Your use of the Services, including but not limited to all applicable privacy and export control laws and regulations. You will defend, indemnify and hold THTL harmless from and against any claim brought against THTL by a third party, any final award of damages or settlement amount, and any liabilities or expenses incurred by THTL (including reasonable attorneys’ fees) as a result of a claim which alleges the access, use, or provision of any Your Data in connection with Your use of the Services violates any applicable law, regulation, or the proprietary rights of any third party.
3.5. Protected Information. You acknowledge that the Services are not designed for or intended to store, process or manage any Protected Information and You agree not to use the Services for any such purpose.
3.6. Confidentiality. The user interface and functionality of the Services is the confidential information of THTL. You agree not to disclose such information to any third party without the prior written consent of THTL.
4. PAYMENT
4.1. Payment Terms. All amounts payable under this Agreement are due prior to your access to the Services. Late payments on any undisputed amounts may be subject to interest charges of one percent (1.0%) per month or the maximum permitted by law, whichever is lower. All payment obligations are non-cancelable and nonrefundable. Coach may cancel their subscription by giving 30-days notice in writing to Linda at Linda@tinyhabits.com.
4.2. Taxes. All amounts payable by You under this Agreement are exclusive of any and all applicable sales, use and other taxes, other than taxes based on THTL’s income. If all or any part of any payment owed to THTL under this Agreement is withheld based upon a claim that such withholding is required pursuant to the tax laws of any country or its political subdivisions and/or any tax treaty between the U.S. and any such country, such payment shall be increased by the amount necessary to result in a net payment to THTL of the amounts otherwise payable under this Agreement.
5. TERM, TERMINATION AND SUSPENSION
5.1. Term. Subject to termination as set forth in this Section, the term of this Agreement will commence on the Effective Date and will continue for as long as any Services are being provided to You under this Agreement (the “Term”).
5.2. Termination. THTL may terminate this Agreement if You commit a material breach of this Agreement and do not cure the breach within ten (10) days from receiving written notice, or immediately if the breach is incapable of cure. In addition, THTL may terminate this Agreement for its convenience on ten (10) days’ written notice, in which event THTL will refund to You any prepaid fees for the remainder of Your Subscription Term.
5.3. Suspension of Services. Without limiting the terms of Section 5.2, THTL reserves the right to suspend access to the Services if (i) You have undisputed amounts that remain unpaid more than thirty (30) days after receiving written notice that such amounts are past due, (ii) THTL needs to address issues with the Services or perform maintenance on the Services; (iii) THTL reasonably determines that You are using the Services in a way that creates a security vulnerability to the Services or the systems of THTL or any third party, or that You are using the Services in violation of law, or (iv) THTL reasonably determines that You are in breach of Section 3 of this Agreement.
5.4. Effect of Termination. On the expiration or termination of this Agreement, THTL will cease providing the Services, and You will promptly pay THTL any Subscription Fees that had accrued but had not been paid prior to the effective date of termination. Sections 3.6, 4.1, and 5-9 survive termination or expiration of this Agreement.
6. PROPRIETARY RIGHTS
6.1. Services. As between the parties, THTL owns all right, title and interest in and to Services, including any modifications, improvement, upgrades, derivative works, enhancements and Feedback related thereto and all intellectual property rights therein. This Agreement does not grant You any ownership rights in the Services.
6.2. Data. As between THTL and You, THTL owns and retain all rights to Your Data. You hereby assign, and agree to assign, all right, title and interest in and to Your Data to THTL. To the extent any of the rights, title and interest in and to Your Data cannot be assigned by You to THTL, You hereby grant to THTL an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights in Your Data. To the extent any of the rights, title and interest in and to Your Data can neither be assigned nor licensed by You to THTL, You hereby irrevocably waive and agree never to assert the non- assignable and non-licensable rights, title and interest against THTL or any of its successors in interest or sublicensees.
6.3. Feedback. To the extent You provide any Feedback to THTL, whether originating from You or any Habiteer, You hereby grant THTL a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to reproduce, prepare derivative works of, distribute, perform, display, and otherwise fully use, practice and exploit such Feedback for any purpose whatsoever.
7. DISCLAIMER.
THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTYOF ANY KIND. THTL MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES THAT MAY ARISE BY OPERATION OF LAW. WITHOUT LIMITING THE FOREGOING, THTL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
8. LIMITATION OF LIABILITY.
8.1 Exclusion of Consequential Damages. THTL WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY TYPE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
8.2 Liability Cap. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL THTL’STOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR FOR INDEMNITY OR OTHERWISE) EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU TO THTL DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
8.3 Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. GENERAL.
Any claim, dispute or controversy relating to this Agreement will be governed by the laws of the State of California without giving effect to any choice of law principles. Any such claim, dispute or controversy must be brought in a court of competent jurisdiction, federal or state, located within Sonoma or San Francisco County, California, and the parties hereby irrevocably consent to personal jurisdiction and venue in such court. The parties are independent contractors and neither party is an employee, agent, servant, representative, partner, or joint venturer of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other. This Agreement may not be assigned by You, even by operation of law, in a merger or stock or asset sale, without the express written permission of THTL. Any attempt to do so will be null and void. This Agreement may be signed in one or more counterparts, each of which will be deemed to be an original and all of which when taken together will constitute the same agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and merge all prior discussions, both oral and written, between the parties related to the subject matter hereof. The failure of either party to require performance by the other party of any provision of this Agreement shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.
AMENDMENT NO. 1 TO COACH CERTIFICATION AGREEMENT
This Amendment No. 1 to the Coach Certification Agreement (the “Amendment”) is being made to that certain Coach Certification Agreement dated as of___________ (the “Agreement”), by and between___________ (“Coach”) and Tiny Habits Training LLC (“THTL”).
This Amendment is effective June __, 2018 (the “Amendment Effective Date”).
Capitalized terms used herein but not defined shall have the meaning ascribed to them in the Agreement.
RECITALS WHEREAS, the parties wish to make changes to the Agreement;
NOW THEREFORE, in consideration of the promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to amend the Agreement as follows:
1. Amendment of Agreement. This Amendment hereby amends and revises the Agreement to incorporate the terms and conditions set forth in this Amendment. Except as otherwise expressly provided for in this Amendment, the Agreement shall remain unchanged and in full force and effect.The term “Agreement”, as used in the Agreement and all other instruments and agreements executed thereunder, shall, for all purposes, refer to the Agreement as amended by this Amendment.
2. Amendment to Section 1. Section 1 is retitled as “Confidential Information and Data” and the text of Section 1 shall be moved to Section 1.1 and renumbered as Section 1.1 (“Confidentiality”).
3. Amendment of Section 1.2 of the Agreement. A new Section 1.2 is hereby added to the Agreement as follows: 1.2 Participant Names and Contact Information. The names, contact information, email addresses and other personal data and information you have access to about Tiny Habits participants, including, without limitation any User Data as set forth in an Attachment hereto (collectively “Data”) as a Tiny Habits Coach shall be considered THTLConfidential Information. You agree to only use the Data solely for purposes of providing the coaching services as described in and as authorized hereunder. You are responsible for complying with all applicable laws and regulations with respect to Your use of the Data, including, without limitation, the General Data Protection Regulation (GDPR). Without limiting the foregoing, but subject to the terms set forth herein, You acknowledge and agree that You must establish a legal basis to collect and use the Data (such as, by way of example only, consent, performance of a contract or legitimate interest). THTL and You will each have a privacy policy that accurately reflects the personal data collected, used and shared. Under no circumstances shall THTL and You together be considered a Joint Controller as described in Article 26 of the GDPR. Rather, THTL and You each hold such Data at all times as “data controller”subject to the terms of this Agreement; provided. however, that the parties’ determination that they each act as a separate data controller may be affected by interpretations of, updates to and guidance under the GDPR, or by a change in their respective processing activities, in which case the parties agree to amend this Agreement in good faith as needed in order to comply with the GDPR.”
4. Miscellaneous. The parties have executed this Amendment effective as of the Amendment Effective Date written above. This Amendment may be executed in counterparts, each of which shall be deemed to be an original, and together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be signed by their duly authorized representatives as of the Amendment Effective Date written above.