1. I am participating in yoga classes, health programs, workshops and/or other
wellness, body work, therapy, exercise and healing arts activities (collectively, the
“Activities”) offered by Break Wellness, LLC, d/b/a Study Break Wellness (the
“Company”). The Activities may be offered in a physical location or offered online by
videos, television, podcasts, apps or other digital media or platforms. All of such
offerings, either physical or online, shall be considered “Activities.”2. I recognize that I
must be in adequate physical and mental health to participate in the Activities. I
understand that the Activities may require intense physical exertion, and I represent
and warrant that I am physically fit enough to participate, and I have no medical
condition which would prevent my full participation in the Activities. I recognize that
the Activities may cause or aggravate a physical injury or medical condition. I
understand that it is my responsibility to consult with a physician before my
participation in the Activities. If I have done so, I have taken the physician’s advice. I
understand that the Company reserves the right to refuse my participation in any
Activity on medical, fitness or any other grounds.3. In consideration of being permitted
to participate in the Activities, I agree to assume full responsibility for any risks, injuries
or damages, known or unknown, which I might incur as a result of participating in the
Activities.4. In further consideration of being permitted to participate in the Activities, I
knowingly, voluntarily and expressly waive any “Claim” (as defined below) I may have
against the Company, its owners, managers, teachers, instructors, workshop
presenters, employees, independent contractors and staff (each, a“Released Party”)
that I may sustain as a result of participating in the Activities even if the Claim arises
from accident or the negligence of any Released Party or anyone else. I agree to
indemnify and hold harmless each Released Party from any loss, cost, or liability
incurred in defending any Claim made by me or anyone making a Claim on my behalf,
even if the Claim is alleged to or did result from the accident or negligence of any
Released Party or anyone else. “Claim” includes but is not limited to any and all
liabilities, claims, demands, expenses, fees, legal actions, rights of actions for damages,
personal injury, mental suffering and distress, or death that I may suffer, my spouse,
children or unborn child may suffer (including, but not limited to, any legal fees or
expenses or any medical expenses) in connection with participation in any Activity.5. I,my heirs or legal representatives forever release, waive, discharge and covenant not to
sue any Released Party for any Claim relating to, associated with, and/or stemming
from the Activities, including any Claim caused by any accident or negligence or other
acts of a Released Party.6. I hereby understand that the Company from time to time
may photograph, video, or otherwise record classes or events and place such
photographs and videos on its Website, social media platforms, or other marketing
materials. I hereby consent to the use of my image and likeness that may appear in any
such photograph or video.7. I hereby understand that the Company may ask for a
review or feedback of the Activities offered. I hereby consent to the use of my review or
feedback on its Website, social media platforms, or other marketing materials.8. This
Release and Waiver of Liability shall be construed in accordance with, and governed
by, the laws of the State of Texas and all actions, suits, claims and proceedings
relating to this Release and Waiver of Liability shall be brought in a court of competent
jurisdiction located in Texas. I consent to personal jurisdiction in the State of Texas. In
case any provision of this Release and Waiver of Liability shall beheld invalid, illegal or
unenforceable, it shall not affect any other provision of this Release and Waiver of
Liability and the remainder of this Release and Waiver of Liability shall remain in full
force and effect, with the offending provision(s) severed here from.I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND FULLY
UNDERSTAND ITS CONTENTS. I VOLUNTARILY AND KNOWINGLY AGREE TO THE
TERMS AND CONDITIONS STATED HEREIN. I AM AWARE THAT BY SIGNING THIS
AGREEMENT, I AM GIVING UP SUBSTANTIAL RIGHTS, INCLUDING MY RIGHT TO
SUE AND CERTAIN LEGAL RIGHTS MY HEIRS, NEXT OF KIN, EXECUTORS,
ADMINISTRATORS AND ASSIGNS MAY HAVE AGAINST ANY RELEASED PARTY.
This Subscription Services Agreement (“Agreement”) is made effective as of the
subscription purchase date (“Effective Date”), by and between Break Wellness LLC
d/b/a Study Break Wellness, a Texas limited liability company, maintaining a mailing
address at 2313 Lockhill Selma Road, #222, San Antonio, Texas 78230 (“BreakWellness”) and the subscription purchaser (“Licensee”).BACKGROUND Break Wellness has developed a Program and Content (both as defined herein) to provide instruction in the area of mental health and physical wellness. Break Wellness also provides Services (as defined herein) related to the Program. Licensee wishes to obtain a right to access and use the Program and Content, and receive certain Services, as set forth herein. Break Wellness is willing to provide the foregoing in accordance with the terms set forth in this Agreement.NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency and receipt of which are acknowledged by the parties, the parties agree as follows.
AGREEMENT
1. Definitions1.1 “Authorized Affiliates” means wholly-owned subsidiaries and divisions of Licensee asset forth in Exhibit B.1.2 “Content” means the written, video, audio, and/or other materials provided to Licensee in printed, streamable, downloadable, or non-downloadable form, as set forth inExhibitA, and all updates thereto provided by Break Wellness during this Agreement, and allModified Content.1.3 “Modified Content” means any alterations, modifications, adaptations, or revisions to or derivative works, or any adaptations, summaries, abstracts, excerpts, or translations, of any Content.1.4 “Online Content” means the content made available to Licensee on Break Wellness’s or its service provider’s website.1.5 “Program” means the proprietary Break Wellness program and materials.1.6 “Services” means the services set forth in Exhibit A.2. License Grant1.7 Right to Access the Program. Pursuant to the terms herein and subject to Licensee’s continued compliance with the terms of this Agreement, Break Wellness grants Licensee and its Authorized Affiliates a limited, nonexclusive, non-sublicensable, right
to access the Online Content and license to use, upload, copy, and display the Content
according to the terms of this Agreement solely (a) for its, its employees, and its
Authorized Affiliates’ own internal use, and (b) to permit access to and viewing of the
Content by Licensee, its employees, and its Authorized Affiliates through Break
Wellness’ website or Licensee’s internal online system solely for internal use.1.8 License to the Content. Pursuant to the terms herein and subject to Licensee’scontinuedcompliance with the terms of this Agreement, Break Wellness grants Licensee and its
Authorized Affiliates a limited, nonexclusive, non-sublicensable, right and license to
use, upload, copy, and display the Content according to the terms of this Agreement
solely (a) for Licensee’s, its employees, and its Authorized Affiliates’ own internal use,
(b) to permit access to and viewing of the Content by Licensee, its employees, and its
Authorized Affiliates through Licensee’s online learning management system solely forinternal use.2.1 The Content may be stored only on servers owned, leased, or controlled byLicensee orin Licensee’s (or its service providers’) internal online system, unless otherwise
approved in writing by Break Wellness in advance, provided that Licensee (a) shall be
responsible for all acts and omissions of such service providers, and (b) shall ensurethatsuch service providers shall make no use of or disclose the Content other than in
support of Licensee’s use under this Agreement. Notwithstanding the foregoing,
Licensee may maintain a copy of the Content in Licensee’s archival systems for backupand disaster recovery purposes.
2. Restrictions on Use2.2 The Content may not be copied, transferred, or loaded onto (but may be displayedby) apersonal computer or other individual computing devices (including, but not limited to,
laptops, tablets, smartphones, flash drives, external drives, or the like) by Licensee and
its Authorized Affiliates, provided that none of the foregoing shall make copies of anyaspect of the Content other than as expressly provided herein.2.3 Online Content may not be downloaded, copied, or shared with any non-licensedpersons or third parties.2.4 Licensee shall not modify the Content in any way without the prior express written
consent of Break Wellness; provided however, Licensee may include Licensee’s brandsin the Content.2.5 Rights Notices. Licensee shall not alter, remove, or cover any copyright or other
proprietary rights notice of Licensee that is associated with any Content. Licensee shall
display Licensee’s trademarks and other branding elements in connection with the
Content provided that no substantive aspect of the Content may be modified.3. License Fee; Payment Terms3.1 License Fees. Licensee agrees to pay Break Wellness the fees set forth in Exhibit A(the
“Fees”).2.1 Payment Terms. Payment terms are as set forth in Exhibit A. Licensee agrees topayinterest on any overdue balance at the rate of the lesser of one and one-half percent
(1½%) per month or the maximum rate allowed by law. All payments shall be made inU.S. dollars.3.2 Taxes. Licensee shall pay all applicable federal, state, local, foreign, and/orprovincialtaxes resulting from any activities under this Agreement, except for taxes which maybeimposed upon the net income of Break Wellness.3.3 Non-Refundable. Other than as expressly set forth in this Agreement, any and all
payments made pursuant to this Agreement to Break Wellness by Licensee are
nonrefundable and shall not be returned or repaid to Licensee.4. Break Wellness’s Obligations4.1 Break Wellness shall provide Content, Online Content, and Program and Servicesin aprofessional and workmanlike manner. Subject to Licensee’s payment of the FeesBreakWellness shall provide any updates to the Content and Online Content which Break
Wellness, at its sole discretion, may create. Break Wellness has the right to changetheformat or any other aspect of the Content and Online Content at its discretion at anytime.
3. Consent to Use4.2 I hereby understand that Break Wellness from time to time may photograph, video,orotherwise record classes or events and place such photographs and videos on its
Website, social media platforms, or other marketing materials. I hereby consent to the
use of my image and likeness that may appear in any such photograph or video.
4.3 I hereby understand that Break Wellness may ask for a review or feedback of the
Program offered. I hereby consent to the use of my review or feedback on its Website,social media platforms, or other marketing materials.4.4 I hereby understand that Break Wellness may use my Company or Personal Name
and/or Company or Personal logo on its Website, social media platforms, or other
marketing materials. I hereby consent to the use of my Company name and logo thatmay appear in any such material.
4. Right to Audit4.1 Licensee agrees that Break Wellness, or its authorized representatives, shall havetheright to conduct periodic audits of Licensee’s records and accounts relating to the useoflicenses, and the Content and Online Content provided by Break Wellness under this
Agreement. The purpose of such audits is to verify compliance with the terms and
conditions of this Agreement and to ensure accurate licensing, billing and reporting.
Break Wellness shall treat all information obtained during the audit as confidential and
shall not disclose such information to any third party except as required by law or with
Licensee’s consent. To the extent Break Wellness determines any inconsistency in the
Audit with the Terms of this Agreement, Break Wellness, at its discretion, can take
appropriate actions to remedy such, including but not limited to charging of additional
fees and/or termination of accounts and restriction to Content and Online Content.5. Intellectual Property5.1 Ownership. The Licensee acknowledges that the Content and Online Content is owned by Break Wellness and/or its licensors, and is protected by copyright, trademark, and other intellectual property rights the ownership and validity of which is acknowledged
by Licensee. Break Wellness retains ownership of all intellectual property rights in the
Content and Online Content, and in any modifications or derivative works therein
created during this Agreement. Notwithstanding the restrictions of Section 3.3 , if
Licensee creates any Modified Content, Licensee agrees to and does hereby irrevocably
and unconditionally transfer, assign, and convey to Break Wellness Licensee’s and its
Authorized Affiliates’ entire right, title and interest in and to all copyrights and all other
rights in the Modified Content, the same to be held and enjoyed by Break Wellness, for
Break Wellness’s own use and benefit, and for Break Wellness’s legal representatives,
successors and assigns, and also agrees to and does hereby waive any moral rights insuch Modified Content.5.2 Except for the limited license granted under this Agreement, nothing herein effectsanytransfer of any right, title or interest in or to the course from Break Wellness toLicenseeor any third party. All rights not specifically granted herein are reserved by BreakWellness.5.3 Licensee shall cooperate with Break Wellness in order to protect Break Wellness’s
intellectual property and other rights related to the Content. Licensee shall promptly
report to Break Wellness any potential infringement, misuse, or unauthorized use oftheContent of which Licensee or its Authorized Affiliates become aware.6. Term and Termination6.1 Term. This Agreement shall commence as of the Effective Date and shall continueforan initial term of monthly or annual (“Initial Term”). Upon monthly or annual payment
of the Fees (stated in Exhibit A), this Agreement shall thereafter automatically renew
for additional monthly or annual periods (“Renewal Term”, and, together with the
Initial Term referred to as the “Term”) unless terminated by Company or Licensee.
6.2 For Cause. Either party may terminate this Agreement for any breach that is notcuredwithin thirty (30) days of receipt of written notice thereof by the party alleged to have
breached. There is no right to cure late payment of any amounts due.
6.3 Without Cause. Licensee may terminate this Agreement without cause byprovidingnotice at least thirty (30) days prior to the beginning of the Renewal Term. In the event
of termination by Licensee without cause, there shall be no refund of any amounts paidto Break Wellness.6.4 Post-Termination. Upon expiration or termination of this Agreement, (a) LicenseeandAuthorized Affiliates shall have the right under Section 2.1 to retain and use internally
Content provided by Break Wellness and may only use them in accordance with the
restrictions set forth in this Agreement and (b) Licensee and Authorized Affiliates shall
have no further right to view, display, or use the Online Content and shall cease all usethereof.6.5 Survival. In addition to any provisions which are expressly stated herein assurviving,the following Sections shall survive any expiration or termination of this Agreement: 3
(Restrictions on Use), 7 (Intellectual Property), 8.4 (Post-Termination), 10 (Limitationof Liability), 12 (Dispute Resolution), and 13 (General).7. Representations and Warranties7.1 Mutual. Each party represents and warrants to the other that: (i) it has all requisite
corporate power and authority to execute, deliver and perform its obligationshereunder;and (ii) it is not a party to any agreement the performance of which is reasonably likelyto affect adversely its ability to perform its obligations hereunder.
7.2 By Break Wellness. Break Wellness represents and warrants to Licensee that itowns,licenses, or has permission to use all right, title, and interest in and to the Content andOnline Content, and to grant Licensee the rights granted herein.
7.3 DISCLAIMER. THE WARRANTIES EXPRESSLY SET FORTH HEREIN ARE IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NONINFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY
BREAK WELLNESS. LICENSEE ACKNOWLEDGES AND AGREES THAT THE
MODIFICATION OR ALTERATION OF THE CONTENT, OTHER THAN IN
ACCORDANCE WITH SECTION 3.3 OR WITH THE PRIOR WRITTEN CONSENT
OF BREAK WELLNESS IN EACH INSTANCE, WILL VOID BREAK
WELLNESS’S WARRANTIES AND INDEMNIFICATION OBLIGATIONS SET
FORTH HEREIN WITH RESPECT TO SUCH MODIFICATION OR ALTERATION.8. Limitation of Liability8.1 EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS, NEITHER
BREAK WELLNESS NOR LICENSEE SHALL BE LIABLE TO THE OTHER FOR
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR
EXEMPLARY DAMAGES OR LOSS OF PROFITS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY ACTS OR OMISSIONS
ASSOCIATED THEREWITH, WHETHER SUCH CLAIM IS BASED ON BREACH
OF WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND
REGARDLESS OF THE CAUSES OF SUCH LOSS OR DAMAGES OR WHETHER
ANY OTHER REMEDY PROVIDED HEREIN FAILS. EXCEPT WITH RESPECT
TO INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL BREAK
WELLNESS’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT
EXCEED THE TOTAL AMOUNTS PAID TO BREAK WELLNESS BY LICENSEE
HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELYPRIOR TO SUCH LIABILITY ARISING.5. Indemnification8.2 Indemnification by Break Wellness. Break Wellness agrees to indemnify, defend,andhold harmless Licensee and its Authorized Affiliates, officers, directors, agents, and
employees, from and against all liabilities, suits, claims, costs, expenses, and losses
(including reasonable attorneys’ fees and costs) of third parties (collectively, all of the
foregoing referred to as “Losses”) based on any third-party claims arising out of the
gross negligence of Break Wellness (or its employees, agents and contractors)occurringin connection with this Agreement, other than to the extent attributed to the fault ofLicensee.8.3 Indemnification by Licensee. Licensee agrees to indemnify, defend, and holdharmlessBreak Wellness, its officers, directors, agents, and employees, from and against all
Losses based on any third-party claim arising out of the negligence or misconduct ofLicensee (or its employees, agents, contractors, and dealers) occurring in connection
with this Agreement, including, but not limited to, any possession, use, disclosure, or
transfer of Content by Licensee in violation of this Agreement, other than to the extentdirectly caused by Break Wellness.
9. Dispute Resolution9.1 Break Wellness and Licensee will attempt in good faith to resolve any dispute.Eachparty will designate an officer or senior level management executive with decision
making authority (collectively, an “Executive”) with the responsibility and the
authority to resolve the dispute. These Executives will meet or hold a telephone
conference call within thirty (30) days after the request to identify the scope of the
dispute and the information needed to discuss and attempt to resolve such dispute.
These Executives will then gather relevant information regarding the dispute and will
meet or hold a telephone conference call promptly to discuss the issues and tonegotiatein good faith to resolve that issue. In the event the parties are unable to resolve the
dispute within sixty (60) days after the specific meeting of the designated Executivesasspecified above (or such longer time as the parties agree), then the dispute shall be
resolved by mandatory arbitration, which may be submitted by either party. Such
arbitration will be conducted at a location to be mutually agreed to by the parties, or in
the absence of such agreement, in San Antonio, Texas in accordance with the
commercial rules (“Rules”) then in effect of the American Arbitration Association by
one (1) arbitrator appointed in accordance with such rules. The award rendered by the
arbitrator will be final and binding, and judgment may be entered upon it in any court
having jurisdiction thereof. In the event the arbitrator determines that either party fails
to resolve any dispute in good faith, the arbitrator may award (in any amount deemed
appropriate by the arbitrator) the prevailing party its costs and expenses of arbitration,
including filing fees and attorneys, accountants, and experts’ fees. All aspects of the
arbitration shall be treated as confidential, as provided in the Rules. Before making any
disclosure permitted by the Rules, a party shall give written notice to the other partyandafford such party a reasonable opportunity to protect its interests. Each party shallbearits own costs in the arbitration; however, the parties shall share the fees and expensesofthe arbitrator equally.9.2 The arbitrator(s) will have no authority to award attorneys’ fees, punitive damages,orany other monetary relief not measured by the prevailing party’s actual damages. The
arbitrator(s) will not make any ruling, finding, or award that does not otherwise
conform to the terms and conditions of this Agreement. The arbitrator(s) may render a
summary disposition relative to all or some of the issues, provided that the responding
party has had an adequate opportunity to respond to any such application for suchdisposition.9.3 Exceptions to Arbitration Requirement. Notwithstanding the foregoing, either party
may apply to any court of competent jurisdiction for a temporary restraining order,
preliminary injunction, or other interim or conservatory relief, as necessary, without
breach of this arbitration agreement and without any abridgment of the powers of thearbitrator.10. Assignment. Licensee may not assign, convey, sublease or transfer, whether bycontract,merger or operation of law (collectively referred to as “assign” or derivatives) any of itsrights orobligations under this Agreement, in whole or in part, without Break Wellness’s priorwrittenconsent. Any attempted assignment in violation of this Agreement shall be of nopower or effect.11. General. This Agreement, including all Exhibits attached hereto, contains the entire
agreement between the parties concerning the subject matter hereof and supersedesany otheragreement and any oral or written communications between the parties. Thebackground recitalsform a material part of this Agreement. This Agreement can only be modified in writingsignedby both parties. The invalidity or unenforceability of any provision of this Agreementshall notaffect the validity or enforceability of any other provision of this Agreement. Except for
Licensee’s obligations to pay amounts to Break Wellness when due, neither party willberesponsible for an inability to perform under this Agreement due to a cause beyond aparty’sreasonable control. In the event that any provision of this Agreement is determined tobe invalid,unenforceable, or otherwise illegal, such provision shall be deemed restated, inaccordance withapplicable law, to reflect as nearly as possible the original intentions of the partieshereto, and theremainder of this Agreement shall remain in full force and effect. This Agreement maybeexecuted in one or more duplicate counterparts, each of which shall constitute anoriginal and allof which taken together shall constitute one and the same Agreement. A facsimile ofan originalsignature shall be deemed an original signature. This Agreement will be construed inaccordancewith the laws of the State of Texas (excluding its choice of law rules). Written noticessentpursuant to this Agreement shall be delivered by registered mail or commercialovernight courierto the applicable signatory at the address set forth above and shall be considereddelivered on theday after sending. The timing and content of any public announcements orcommunicationsrelating hereto shall be subject to the mutual agreement of the parties. The parties are
independent contractor with respect to each other and nothing in this Agreement shallbe deemedto create the relationship of partners, joint venturers, or any agency relationship.Neither partyshall have the authority to bind the other.IN WITNESS WHEREOF, each party has, by its duly authorized representative,executed thisAgreement as of the Effective Date.EXHIBIT A
CONTENTContent means the following (check applicable boxes):☒ Recorded videos
☒ Interactive course☒ Online videos available by streaming
☐ Videos available for downloading☒ Written materials, namely, the resource books, course materials, presentation file☐ Other:“SERVICES”The Services are the following:
A. NONELICENSE FEES; PAYMENT TERMSLicensing Plan.Licensee represents that it has one user. Accordingly, Break Wellness is grantingLicensee one license. (“Licensing Plan”).Licensing Fees. The “Fees” for the Licensing Plan are, collectively, the following:A. an initial license fee of $8 monthly or $64 annually “Initial License Fee”)
B. any changes in fees to be provided to Licensee at least 60 days prior to the RenewalTerm“Monthly or Annual License Fee”)
Payment Terms are:A. Licensee shall pay the Initial License Fee upon execution of the Agreement.
B. Renewal Fee will be automatically withdrawn until termination of services byCompany or Licensee.
EXHIBIT B
AUTHORIZED AFFILIATESThere are no Authorized Affiliates of Licensee to be included in the rights grantedunder the Agreement.
