Cultivate Coaching Program Terms and Conditions
Last Updated: June 18, 2024
PLEASE REVIEW THESE TERMS AND CONDITIONS CAREFULLY. THESE TERMS AND CONDITIONS CONTAIN A RELEASE AND WAIVER OF CLAIMS. THEY ALSO REQUIRE THAT DISPUTES BETWEEN THE PARTIES BE RESOLVED BY BINDING ARBITRATION AND CONTAIN A WAIVER OF TRIAL BY JURY. BY AGREEING TO THESE TERMS AND CONDITIONS, USER IS EXPRESSLY ACKNOWLEDGING THAT IT HAS READ AND UNDERSTOOD ALL OF THE TERMS AND CONDITIONS AND HAS TAKEN THEM TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. PLEASE READ CAREFULLY BEFORE EXECUTING.
Binding Agreement. By agreeing to these Terms and Conditions and accessing the Services, as described below, these Terms and Conditions shall become a binding agreement (the “Agreement,” “Terms and Conditions”) between the individual engaging the Services or the employer engaging the Services on behalf of an employee (each of any such individual, employer, or employee, is a “User”), who has agreed to these Terms and Conditions and accesses the Services, and Cultivate Team, LLC, a New York limited liability company, (“Cultivate”) (each User and Cultivate are a “Party” and, collectively, User(s) and Cultivate are the “Parties”). User expressly understands that these Terms and Conditions may be updated periodically, and by continuing to access the Services, User agrees and shall adhere to the updated Terms and Conditions.
Services: User shall be provided with access to Cultivate’s coaching services, which includes the services that are part of the program that the User agrees to by selecting the service or program, which may include, by way of example and not by limitation, individualized virtual coaching sessions for User (the “Services”), agreeing to these Terms and Conditions, and making payment.
Fee; Payment.
a) Fee. In consideration of the Services, User shall pay to Cultivate a monthly fee in the amount selected in the payment page (the “Monthly Fee”). The first Monthly Fee shall be paid upon acceptance of these Terms and Conditions, and thereafter shall be paid on a monthly basis unless User or Cultivate provides a notice to cancel, upgrade, or downgrade their subscription via email. The change in tier will take effect the day after the last day of the current subscription period. The new rate will be charged in the next monthly billing cycle, except in the event that User cancels their subscription, in which case no charges will be assessed. Downgrading your Service may cause the loss of services of your account.
User understands and agrees that if the Monthly Fee is received from a third party, such payment may be construed as an in-kind donation, payment, or contribution to a political action committee, campaign committee, or other entity affiliated with a candidate for political office. User agrees to adhere to all provisions of this Agreement and any applicable campaign rules, laws, and regulations, including without limitation those rules, laws, and regulations regarding the receipt of in-kind donations (collectively the “Campaign Rules”) in connection with payment of the Monthly Fee. In addition to and not in lieu of the indemnification provision hereof, User agrees that it shall indemnify, defend, and hold Cultivate harmless from any and all expenses, penalties, fines, demands, costs, liabilities, or other fees incurred by Cultivate arising from or related to any payment of fees by or on behalf of User.
b) Payment. Payment shall be due upon User’s agreement to these Terms and Conditions, and on a monthly basis thereafter, as indicated in this Section 3, and shall be nonrefundable unless written notice is given via email to cancel or downgrade a subscription before the last day of the current subscription period and the user is charged an incorrect amount for the next subscription period. User represents and warrants that User is authorized to and hereby authorizes Cultivate to collect the Monthly Fee via the payment method provided by User.
Scheduling and Cancellation. Changes to or cancellation of scheduled appointments should be made in advance of the scheduled appointment. No refunds or credits will be issued for missed appointments that are not rescheduled.
Term and Termination:
a) Term. This Agreement shall be effective and the term shall commence as of the date that these Terms and Conditions are accepted by the User (the “Effective Date”) and continue for a subscription period of one month (the “Subscription Period”). The Subscription Period shall automatically renew on a monthly basis (Subscription Periods taken together shall be the “Term”), unless terminated by User or Cultivate as provided herein.
b) Termination. User may cancel, upgrade, or downgrade User’s subscription with email notice to Cultivate. Canceling, upgrading, or downgrading of User’s tier will take effect the day after the last day of the then-current Subscription Period. Cultivate may terminate this Agreement at any time with or without cause by email notice to the User. Termination by Cultivate shall be effective immediately upon notice to User and no further fees for subsequent Subscription Periods shall be charged to User’s authorized payment method, except in the event that User has outstanding payments due to Cultivate or User re-subscribes to the Services. Cultivate does not provide refunds or credits for any partial Subscription Periods.
Parties Relationship. In agreeing to the Services, User understands that Cultivate will serve as an independent contractor, and is in no way User’s employee, agent or business partner. Nothing in this Agreement shall constitute a partnership, agency, joint venture or User-employee relationship between User and Cultivate or authorize User to make any representation on behalf of or in any way to bind Cultivate to any obligation of any kind, express or implied, to any third party, or to incur any liability on behalf of User. Cultivate is retained solely for the purpose of providing the Services to User. Nothing in this Agreement shall prohibit Cultivate from furnishing the Services to others, at Cultivate’s sole discretion.
Intellectual Property. Cultivate shall retain all rights, title, ownership and interest to: (i) all presentations, manuals, photos, videos, content, or other materials developed and owned by or licensed to Cultivate used in the performance of the Services; (ii) all generic or proprietary information developed by Cultivate; (iii) all ideas, methodologies, processes or procedures used, created or developed by Cultivate in the conduct of Cultivate’s business; (iv) any work product, materials, or resources that may be develop specifically for User but not accepted or otherwise delivered to User; or (v) any work product, materials, or resources User does not pay for, even if such work product, materials, or resources were produced as part of Cultivate’s performance of the Services for User. By participating in the Services, User may have access to intellectual property owned by Cultivate as described in this Section 7. User shall treat knowledge of Cultivate’s intellectual property as Confidential Information (as described in Section 9 below) of Cultivate, respect it as such, and not disclose any of such Confidential Information to anyone outside of the Cultivate without prior written approval to do so by Cultivate.
User Information. Any pre-existing or preparatory materials, including, without limitation, information related to User’s business, operations, employee records and data, lists, files, documents, technology assets, computer records, and constituent records, in any form whatsoever, whether written, electronic, or otherwise, delivered by User to Cultivate (collectively “User Information”) will remain the sole and exclusive property of User. User represents that the User Information does not and will not infringe or violate the intellectual property, privacy, or proprietary rights of any third party. User hereby grants to Cultivate a non-exclusive, royalty-free license to use, copy, modify, and create derivative works of User Information solely in connection with Cultivate’s performance of the Services. Cultivate may rely upon User Information as provided by User to Cultivate in connection with the performance of the Services and can assume the truthfulness of any User Information or statement made about the same by the User for any purpose, including for regulatory or other legal approval processes.
Confidentiality. Cultivate and User (either, when receiving Confidential Information, a “Receiving Party”) may have access to proprietary, private or otherwise confidential information (“Confidential Information”) of the other party (either, when disclosing Confidential Information, a “Disclosing Party”). Confidential Information shall mean all non-public information that constitutes, relates or refers to the personal affairs, professional work, business or operations of the Disclosing Party, including but not limited to any goals, contact or job information, personal information, methodologies, formulae, systems, business plans and strategies, financial information, forecasts, books and records, operational information, contracts, the terms, and provisions of this Agreement, and all other information relating to Disclosing Party disclosed to Receiving Party, whether or not labeled as “Confidential” and regardless of the method of transmission or the media in which the same is stored or recorded. Confidential Information does not include any information, or any portion of any document based thereon, that: (i) was known to the Receiving Party at the time of its disclosure by the Disclosing Party; (ii) was or becomes generally available to the public other than as a result of a disclosure by the Receiving Party; (iii) has already been or is hereafter independently acquired or developed by the Receiving Party without violating this Agreement; or (iv) was or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not, to Receiving Party's knowledge, subject to a confidentiality obligation with respect to such information. Except as permitted herein, the Receiving Party will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the Receiving Party, or divulge, disclose, or communicate in any manner any Confidential Information; however, the Receiving Party may disclose all or any part of the Confidential Information to its employees and agents on a need-to-know basis. If the Receiving Party is compelled to disclose all or any part of the Confidential Information in any judicial or administrative proceeding, it may do so without liability under this Agreement so long as it uses reasonable efforts to obtain assurances that confidential treatment will be accorded to such information and provides prior written notice to the Disclosing Party. User understands that the relationship between Cultivate and User in the context of coaching services is not considered a legally confidential relationship (like the medical and legal professions) so communications are not protected by any legally recognized privilege. The absence of any such legally recognized principle of confidentiality shall not impair or restrict the Cultivate’s duty of confidentiality, as may be applicable in any ethics codes governing a coaching relationship.
Representations and Warranties. User shall comply with all federal, state, and local laws, rules, regulations, and ordinances in connection with the access to the Services. User further represents and warrants that its access to the Services shall not violate any federal, state or local law, rule, regulation or ordinance, including, without limitation, laws governing the use and exchange of protected health information, privacy rules and regulations, and copyright and trademark rules and regulations. This provision shall survive termination of this Agreement.
Publicity. Cultivate hereby grants User a limited, revocable, royalty-free, non-exclusive license to use the Cultivate name and/or logo solely for use in connection with the Services, subject to the terms and conditions of this Agreement. User shall not issue any press releases related to the Services or this Agreement, or otherwise use Cultivate’s name or logo in a press release without express prior written approval from Cultivate (“Public Statements”). Among any other remedies available to it, Cultivate expressly reserves its right to terminate this Agreement immediately upon notification that any Public Statements have been distributed in violation of this provision, and obtain an injunction to enjoin any further dissemination of Public Statements in violation of this provision. This provision shall survive the termination of this Agreement.
User represents and warrants that User is authorized to grant on behalf of the rightsholder (such as User’s employer) and hereby grants to Cultivate a limited, revocable, royalty-free, non-exclusive license to use, without compensation or notification, User’s or rightsholder’s name and logo in materials, regardless of media form, in connection with its advertisement of the Services. User or rightsholder, may revoke such license by submitting a written notice to Cultivate in accordance with this Agreement.
Indemnification. Each Party (when indemnifying the other Party, the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party and its affiliates (when indemnified by the other Party, collectively the “Indemnified Party”) from and against any demands, actions, suits, damages, settlements, costs, liabilities, losses, claim, and expenses, including reasonable attorneys' fees and costs, arising from or related to (i) Indemnifying Party's gross negligence or willful misconduct in performing Indemnifying Party's obligations under this Agreement; (ii) Indemnifying Party's material breach of any of its covenants, representations and warranties in this Agreement; and/or (iii) Indemnifying Party's violation of any federal, state, or local law, rule, regulation or ordinance, including without limitation rules and regulations associated with claims of defamation, or copyright or trademark rules or regulations, in performance of Indemnifying Party's rights or obligations under this Agreement.
Disclaimer of Warranties. User understands and agrees that Cultivate makes no guarantees regarding the results of the Services and the Services’ impact on User. User acknowledges that the Services and Work Product provided by Cultivate hereunder are provided “as is” and “where is,” without any warranty, representation, or condition of any kind whatsoever, and that User’s use of the Services is at User’s own risk. Cultivate does not make, and User is not receiving, any warranties, express, implied, or otherwise, with respect to the Services, including but not limited to, implied warranties and conditions of merchantability, fitness for a particular purpose, title or non-infringement. Cultivate shall not be held responsible for Services that may later be undesirable or cause inconvenience to User. User also understands and acknowledges that Cultivate will not be responsible for loss due to lateness, no shows, or other actions or inactions by User, or other third parties, neglect, human error, loss of materials, or equipment or other failures. This provision shall survive the termination of this Agreement.
Professional Services Disclaimer. User understands and agrees that the Services do not constitute therapy, psychological counseling, or social work, even though in performing the Services, Cultivate may address issues or life conditions that impact User’s personal and professional development. User is responsible for User’s own health and wellbeing at all times during the Term of this Agreement, as in every other area of life. User understands that in participating in the Services, Cultivate may address different phases of User’s dynamic life, but User agrees that Cultivate is not retained nor licensed to provide legal, financial, or investing advice and if User desires those services, it is User’s responsibility to seek a licensed professional.
Release and Waiver. User hereby RELEASES, WAIVES, DISCHARGES AND COVENANTS THAT IT SHALL NOT SUE CULTIVATE or its affiliates (collectively, the “Releasees”), from and for any liability resulting from any loss or damage, including loss of property, data, confidential information, business, personal injury, accident or illness (including death), and/or property loss, however caused, arising from, or in any way related to the Services. USER UNDERSTANDS AND AGREES THAT THIS RELEASE AND WAIVER IS INTENDED TO BE AS BROAD AND INCLUSIVE AS PERMITTED BY LAW. USER UNDERSTANDS AND AGREES THAT USER HAS FORFEITED ITS RIGHTS TO SUE CULTIVATE, AND THAT THIS RELEASE OF LIABILITY IS VALID FOREVER. User agrees that if User asserts a claim contrary to what User has agreed to herein, it shall be liable for the expenses (including legal fees) incurred by Cultivate. In the event that any portion of this provision is found invalid, recourse against Cultivate shall under no circumstances include consequential, special or indirect damages, and the intent of the Parties is to re-draft this provision to be lawful or valid. This provision shall survive the termination of this Agreement.
Limitation of Liability. NEITHER CULTIVATE NOR ITS AGENTS, VENDORS, LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS WILL HAVE ANY LIABILITY TO USER OR ANY THIRD-PARTY FOR ANY PERSONAL INJURY, ACCIDENT, PROPERTY LOSS, LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THE SERVICES OR RELATED TO THIS AGREEMENT. THE TOTAL LIABILITY OF CULTIVATE TO USER OR ANY THIRD-PARTY ARISING OUT OF THIS AGREEMENT OR USE OF SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED A TOTAL AMOUNT OF ONE THOUSAND DOLLARS ($1,000.00). IN NO EVENT WILL CULTIVATE OR ITS AGENTS, VENDORS, LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS, BE LIABLE FOR USER’S PARTICIPATION IN THE SERVICES, OR ANY ACT OR OMISSION BY ANY OTHER THIRD PARTY. ANY DISPUTE BETWEEN AN EMPLOYER AND AN EMPLOYEE ARISING FROM THIS AGREEMENT OR THE SERVICES SHALL BE SOLELY BETWEEN THE EMPLOYER AND THE EMPLOYEE, AND CULTIVATE DISCLAIMS ANY LIABILITY IN CONNECTION WITH SUCH DISPUTES. ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Non-Solicitation. During the Term of this Agreement and for a period of one (1) year following the termination of this Agreement for any reason, whether voluntary or involuntary, User will not assist, solicit, coach, or encourage any personnel and associated persons of Cultivate to discontinue employment with Cultivate. This Section will survive the term and termination of this Agreement.
Dispute Resolution. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The Parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the Parties are unable to agree to such a selection, each Party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place in New York, and shall apply the law of New York to the extent applicable. The arbitrator(s) shall not have the authority to award punitive damages. The decision rendered by the arbitrator(s) shall be final and binding on the Parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The arbitration shall be private and confidential and only the Parties, the witness then testifying and the attorneys may attend the hearing. EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTERS INVOLVING THE PARTIES HERETO. This provision shall survive termination of this Agreement.
Miscellaneous Provisions.
a) Survival; Third Party Rights; Severability. Provisions of this Agreement, which by their nature and terms extend beyond the termination of this Agreement shall continue in effect after termination of this Agreement, regardless of the reason, and whether such termination is voluntary or involuntary. Nothing contained in this Agreement shall be construed, nor is intended to give any rights or benefits to any person or entity, other than to User, and Cultivate. User acknowledges that the restrictions contained in this Agreement are fair and reasonable, and are reasonably required for the protection of Cultivate. If any provision of this Agreement (or portion thereof) is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision (or portion thereof) of this Agreement that can be given effect without the invalid provision. In such event, all Parties agree that the arbiter or court making such determination shall have the power to alter or amend such provision so that it shall be enforceable to the maximum extent permitted by law.
b) Waivers; Assignment; Modification. Failure or omission by Cultivate at any time to enforce or require strict or timely compliance with any provision of this Agreement shall not affect or impair that provision in any way or the rights of Cultivate to avail itself of remedies it may have in respect to any breach of that provision. Any waiver or consent given by Cultivate must be in writing and shall be effective only as to that instance and will not be construed as a bar to or waiver of any right on any other occasion. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by either Party without the prior written consent of the other Party; provided, however, that Cultivate may, without notice to User, (i) assign this Agreement to any entity that acquires all or substantially all of its assets or its business that is the subject hereof, or (ii) assign this Agreement to any entity that is owned by Cultivate. No oral statement shall in any manner modify or otherwise affect the terms and conditions set forth herein.
c) Notices. Except as otherwise specified herein, any notice required or permitted to be given under this Agreement shall be given by email, and shall be deemed to have been duly given upon receipt; or if the party to which it is addressed rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change in the email address for which no notice was given, then upon that rejection, refusal, or inability to deliver. For a notice to a party of be valid, it must be addressed as follows: if to Cultivate, to sarah@cultivateteam.org, and, if to User, to the email address entered by User upon agreement to these Terms and Conditions or last filed by User in writing with Cultivate in accordance with this provision.
d) Force Majeure. Cultivate shall not be liable to User under any circumstances for any damages, delay in performance or failure to perform by Cultivate if caused by any act or occurrence beyond its reasonable control, including but not limited to embargoes; changes in government regulations or requirements (executive, legislative, judicial, military or otherwise); acts of war, armed conflict, acts of terrorism, or threats thereof as substantiated by government warnings or advisory notices; strikes or labor disputes; civil disturbances; disease, pandemic, epidemic, or declared public health emergency; power failure, electrical surges or current fluctuations; disaster, fire, lightning, earthquake, flood, the elements or other forces of nature, including unseasonable extreme inclement weather; curtailment, delays, or failures of transportation services or systems; acts or omissions of telecommunications common carriers; or any other cause reasonably beyond the Parties’ control. If Cultivate’s performance is delayed by force majeure, the time for performance of the Services will be extended by the length of the delay or, at Cultivate’s option, terminated as provided herein.
e) Headings; Entire Agreement. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision thereof. Words of any gender used in this Agreement shall be held to include any other gender, and words in the singular shall be held to include the plural when the sense requires. This Agreement, including any payment page through which the Services are purchased, constitutes the entire agreement between the parties and supersedes all previous agreements on this matter. There are no other written or oral agreements, representations, or understandings with respect to the subject matter of this Agreement. As noted above, other terms and conditions governing use of Cultivate’s Services are incorporated herein by reference in Section 2.
USER ACKNOWLEDGES THAT IT HAS THOROUGHLY READ THIS AGREEMENT AND FULLY UNDERSTAND ITS CONTENTS. BY SIGNING UP AND PAYING FOR THE SERVICES, USER IS AGREEING TO THESE TERMS AND CONDITIONS AND WAIVING CERTAIN LEGAL RIGHTS, INCLUDING RIGHTS USER MIGHT HAVE TO BRING A LEGAL ACTION OR ASSERT A CLAIM AGAINST CULTIVATE TEAM, LLC. USER INTENDS FOR ITS CONSENT TO THESE TERMS AND CONDITIONS TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF LIABILITY OF CULTIVATE TEAM, LLC TO THE GREATEST EXTENT PERMITTED BY LAW.
By the signing up and paying for the Services, User hereby confirms its agreement to abide by these Terms and Conditions.