SENIOR LIVING MEDIA, LLC
Activity AssistantTM Subscription Terms
Last Updated: May 15, 2020
IMPORTANT – These Terms of Service (the “Terms”), together with any applicable Order (defined below) and, if you are ordering or accessing the Services via our website, www.seniorlivingmedia.com (the “Site”), the Terms of Use and Privacy Policy posted at the Site (the “Website Terms”), constitute the entire agreement (the “Agreement”) between the person or entity listed in the Order as the “Customer” (referred to in these Terms as “you,” “your” or similar terms) and Senior Living Media, LLC, a Georgia limited liability company (referred to as “we,” “us,” “our” or similar terms) with respect to the Services described in this Agreement. In the event of any conflict between the terms and conditions of these Terms and the Website Terms, the terms and conditions of these Terms shall control, but only with respect to the Services described in these Terms. For your convenience and records, we suggest that you print and retain or save a copy of these Terms.
Subscription Services; Term. By your execution of our standard ordering document(s) referencing these Terms, which may be electronic (each, a “Order”), you are subscribing to our printable content creation and distribution services (the “Services”), which are further described on the applicable Orders, but typically include (a) creation of various content, graphics or other collateral materials (collectively, the “SLM Content”) to be made available as “printable” worksheets, activity sheets and similar documents (the “Activity Assistant”); and (b) inclusion in the Activity Assistant other content, graphics or other information provided by you (collectively, “Customer Content”). These Services and the fees applicable thereto are nonrefundable once ordered, unless we terminate such Order without cause as described in Paragraph 4. The initial term of your subscription is 12 months; upon expiration of that initial term, your subscription will renew for successive terms of 12 months each (each of the initial term and each renewal term, a “Subscription Term”). You may terminate your subscription upon email notice to us or via your online account prior to the last 60 days of your then-current Subscription Term, and such termination shall be effective as of the last day of such Subscription Term. You may not terminate your subscription for convenience prior to the expiration of any Subscription Term, and no termination by you will be effective on any date other than the last day of your then-current Subscription Term. If you do not cancel your subscription as described in this Paragraph 1, your subscription will renew automatically as described above.
Provision of Services; License Grant. Subject to the terms and conditions of this Agreement, we (a) agree to provide you with the Services described in the Order(s); and (b) grant you a perpetual, limited, nonexclusive, nontransferable (except as set forth in this Paragraph 2), revocable (as set forth herein) license to access, via the Site, download and use the SLM Content solely in your ordinary course of business at the location specified in the Order (the “Authorized Location”), which use includes making a reasonable number of tangible copies of the SLM Content to enable distribution to your residents at the Authorized Location. You may not, without our prior written approval: (i) sublicense, distribute or otherwise transfer any SLM Content to any third party, including, without limitation, any affiliates or use the SLM Content at any or for the benefit of any location other than the Authorized Location; or (ii) use any SLM Content or any part thereof for the purpose of any activities that violate any applicable law or regulation (including, without limitation, any laws or regulations regarding trademark infringement, false advertising, unfair competition or copyright infringement). You grant us and our affiliated companies and necessary sub-licensees a worldwide, irrevocable, nonexclusive, royalty free license during the term of this Agreement to use, copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit, modify, edit and otherwise exploit your Customer Content, but only for your benefit and as necessary to provide the Services and Printables. By providing Customer Content, you warrant and represent that you own or control all of the rights to your Customer Content, including, without limitation, all the rights necessary for you to provide or submit such Customer Content.
Fees. The fees applicable to your initial subscription are set out in your Order(s). Our fees are subject to change with respect to any subsequent or renewal Subscription Term on written notice to you via email or via your online account on at least 90 days prior to such fee increase, and if you do not agree to such changes, you should contact us to cancel your subscription as described in Paragraph 2. The fees applicable to any non-subscription based Services are set out in your Order and shall be billed upon execution of that Order. As noted in Paragraph 1, such fees are nonrefundable except as described in Paragraph 4.
As long as you have an account with us or owe us any fees, you must maintain valid and current credit card on file with us and authorize us to charge any payments due with respect to your account or use of the Services against that credit card. By providing us with payment information, you represent and warrant that you are authorized to use that payment method and that any and all charges may be billed to that payment method and will not be rejected. If we cannot to process your payment method, we will try to contact you by email. In any case, we will suspend your subscription and will not provide you with the Services until your payment can be processed. Fees are processed monthly, in advance, beginning on the date of your Order and continuing on the same day of each subsequent month in your Subscription Term.
Unless we terminate your account without cause as described below in Paragraph 4, in which case we will provide you with a refund as described in that paragraph, you will not be entitled to receive a refund from us in any circumstances. As long as you maintain a subscription with us, your credit card will be charged as described in this paragraph.
Any disputes about any charges to you under this Agreement must be submitted to us in writing within 60 days of the date such charges are incurred. You agree to waive all disputes not brought within the 60 day period, and all such charges will be final and not subject to challenge. All fees and expenses set forth in the Order(s) for the Services are exclusive of taxes imposed on the sale of the Services, all of which are your sole responsibility.
Termination. Unless otherwise terminated as described below, your subscription will remain active (and this Agreement will remain in effect) from the date of your Order until the expiration (and nonrenewal) of your Subscription Term; as described in Paragraph 1, you may cancel your subscription, effective as of the last day of the then-current Subscription Term at any time upon written notice to us via email or your online account prior to the last 60 days of your then-current Subscription Term. Please note that you are responsible for any fees that are due and payable during the then-current Subscription Term after you provide such notice, and your credit card will be charged accordingly. YOU ARE SOLELY RESPONSIBLE FOR TERMINATING YOUR SUBSCRIPTION AND THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR SUBSCRIPTION AND THIS AGREEMENT OR FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR SUBSCRIPTION AND THIS AGREEMENT.
We may suspend the Service or terminate your account at any time, with or without cause, upon notice to you at your email address on file with us. If we terminate your subscription or any Order without cause prior to completion of the Services, we will refund any fees that we have collected and that are applicable to any Services that we have not or do not provide to you. We will not provide you with a refund if you cancel your subscription or any Order prior to the completion of Services thereunder or we terminate this Agreement with cause, such as (but not limited to) a violation of this Agreement. Following the termination or expiration of this Agreement, (a) we will stop providing you with the Services and the Activity Assistant; and (b) you must stop using the Services and the Activity Assistant. Paragraphs 3-10 of this Agreement shall survive any termination or expiration of your subscription or this Agreement.
Representations and Warranties; Disclaimer. THE SERVICES, SLM CONTENT AND ACTIVITY ASSISTANT ARE PROVIDED “AS-IS,” AND WE AND OUR SUPPLIERS DO NOT MAKE ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES WITH RESPECT TO THE SERVICES, THE SLM CONTENT OR THE PRINTABLES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGMENT, OR ERROR FREE USE, ALL OF WHICH ARE HEREBY DISCLAIMED AND EXCLUDED. WE DO NOT GUARANTEE ANY SPECIFIC RESULTS FROM YOUR USE OF THE SERVICES OR THE PRINTABLES.
Confidentiality. In the performance of this Agreement, either party may disclose to the other certain “Proprietary Information,” which, for purposes of this Agreement, means information that is of value to its owner and is treated as confidential, but shall not include that information that: (a) is or becomes a part of the public domain through no wrongful conduct of the receiving party; (b) was or is lawfully disclosed to the receiving party by a third party without restriction on subsequent use or disclosure; or (c) is independently developed by the receiving party without use of any Proprietary Information of the disclosing party. Our Proprietary Information includes, without limitation, all non-public information pertaining to Services. Each of you and we acknowledge and agree that the Proprietary Information shall remain the sole and exclusive property of the disclosing party or a third party providing such information to the disclosing party. The receiving party agrees to hold the Proprietary Information disclosed by the other party in strictest confidence and not to, directly or indirectly, copy, use, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information for any purpose whatsoever other than as expressly provided by this Agreement or as required by judicial or governmental action or applicable law. Subject to the Agreement set forth herein, the receiving party shall not disclose the Proprietary Information to a third party without the written consent of the disclosing party and shall protect the Proprietary Information of the disclosing party with the same degree of protection and care the receiving party uses to protect its own Proprietary Information, but in no event less than reasonable care.
Intellectual Property. We and our third-party suppliers retain all right, title, and interest (including copyright and other intellectual property or informational rights) in and to the SLM Content and all legally protectable elements or derivative works thereof, subject to the license granted to you pursuant to Paragraph 2(b). We may place copyright or other proprietary notices within the SLM Content and Printables, and you may not alter or remove such notices without our written permission. Notwithstanding anything to the contrary in this Agreement, you may not prohibit or enjoin us from utilizing any skills, knowledge or information of a general nature we may acquire during the course of providing Services including, without limitation, knowledge or information that we could reasonably acquire in similar work performed for our other customers.
LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (I) ANY DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, SLM CONTENT OR PRINTABLES IN EXCESS OF AMOUNTS PAID UNDER THE APPLICABLE ORDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABIITY; OR (II) ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, LOSS OF DATA OR PROFITS, LOSS OF OR DAMAGE TO PROPERTY OR CLAIMS OR THIRD PARTIES, WHETHER BASED ON CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF DAMAGES. YOU ACKNOWLEDGE THAT OUR FEES HAVE BEEN CALCULATED SPECIFICALLY TAKING INTO ACCOUNT YOUR ASSUMPTION OF THIS RISK, AND THAT WE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON OUR LIABILITY.
We are not liable or responsible for any delays or failure in performance of any part of the Services due to any cause beyond our control, including, without limitation, acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, zombie apocalypse, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers.
Indemnification. You agree to indemnify, defend and hold us, our suppliers, licensors, licensees and affiliates, and all of our and their respective directors, officers, agents, distributors, employees and other agents (collectively, the "Indemnified Parties") harmless from and against any and all damages, losses, liabilities, penalties, settlements, expenses and costs incurred by the Indemnified Parties (including, without limitation, reasonable attorneys' fees and costs) in connection with any claim arising out of or related to (a) any breach by you of this Agreement; or (b) your use of the Services, the Activity Assitant or any SLM Content. You agree to provide us with prompt written notice in the event of any such claims or actions. You shall cooperate fully with us in the defense of any claim. We reserve the right, at your expense, to assume the exclusive defense and control of any matter subject to indemnification by you, and you shall not settle any action or matter without our written consent.
In addition, you acknowledge and agree that we have the right to seek damages when you use the Services or the SLM Content for unlawful purposes, in an unlawful manner, or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance or consequential damages.
General. This Agreement (which consists of these Terms, the Website Terms and all applicable Orders) is the only agreement between you and us relating to the Services, and it supersedes all prior communications and/or understandings relating to the Services, oral or written, of either party. This Agreement may be only by amended by written agreement of both parties. The parties are, and will remain, independent contractors with respect to each other, rather than employees or agents of one another. You may not assign any of your duties or obligations, including, but not limited to, your obligation to make payment, under this Agreement. We may freely assign this Agreement and our rights hereunder. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Georgia without regard to Georgia’s choice of law provisions. Except as specifically set forth herein, all communications between the parties which are required or permitted to be in writing shall be sent by hand delivery, with receipt obtained; by recognized courier, properly prepaid; or by certified mail, receipt requested, postage prepaid and sent as follows: (a) if to us, to 3075 Breckinridge Blvd., Suite 430, Duluth, GA 30096, Attn: Manager, or (b) if to you, at the address set forth in your Order. All such communications shall be deemed received by the other party upon actual delivery or refusal. You further agree that certain communications under this Agreement may be via email as specified herein, and agree that we may use the email address set forth in your Order (or your online account, whichever is more recent) for such purposes. By written communication, either party may designate a different address or email address for purposes hereof. A waiver by either party of any breach shall not be construed to be a waiver of any other breach. A party may only waive or modify its rights under this Agreement by notifying the other party of the waiver in writing. If any part of this Agreement is deemed unenforceable, the remainder of the Agreement, or the application of the unenforceable term under different circumstances, will not be affected. Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. The agents of both parties have participated in the preparation of this Agreement, and the parties agree that the Agreement should not be more strictly construed against one party than the other. The provisions of the Agreement are for the benefit of the parties hereto only, and of no other person.