Motivo Consulting, Inc., a Delaware corporation d/b/a Motivo Health (“Motivo,” “we,” “us,” or “our”) provides a platform via motivohealth.com or any subdomain thereof (the “Platform”) where Providers can provide certain Provider Services to Therapists and Agencies, and Therapists and Agencies can obtain the Provider Services and Motivo Services (as such terms are defined below). As used herein, “you,” “your” and other similar words mean you, the “Provider”, being the person who accesses or uses the Platform for the purpose of connecting with Therapists and Agencies to provide Provider Services to such Therapists and Agencies.
These Motivo Provider Terms and Conditions (these “Terms”) govern your access to and use of the Platform and your provision of the Provider Services. Please read these Terms carefully. These Terms constitute a legally binding agreement between you and us. BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING THESE TERMS OR AN ORDER FORM REFERENCING THESE TERMS, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT SET UP AN ACCOUNT WITH US, ACCESS OR USE THE PLATFORM OR PROVIDE PROVIDER SERVICES THROUGH MOTIVO.
These Terms are effective between you and us as of the earlier of: (a) the date you accept these Terms, (b) the date you first create an Account, (c) the date you first access or otherwise use the Platform or the Motivo Services, or (d) the date you first provide Provider Services, and will continue to govern until your Account has been terminated, subject to the survival provisions set forth herein.
The following definitions shall apply to any capitalized terms which are not otherwise defined within the Terms.
(a) “Account” means the account you create with Motivo to provide the Provider Services (as described in Paragraph 3 below).
(b) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
(c) “Agency” or “Agencies” means those clients of Motivo for whom you may be engaged to provide Provider Services from time to time, including, without limitation, those clients to whom you were introduced by Motivo or to whom you were introduced through your use of the Platform and/or the Motivo Services.
(d) “Applicable Laws” means any and all federal, state or local laws, statutes, ordinances, regulations, or rules which are now in effect or which may come in to effect, in each case to the extent applicable to the person, entity, conduct, services, product, transaction, covenant, or contract in question.
(e) “Confidential Information” means all information disclosed by one party to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include information that: (a) is generally available to the public, (b) was within a party’s possession prior to being furnished by a party hereto, or (c) becomes available to a party on a non-confidential basis other than by breach of an obligation of confidentiality.
(f) “Information” means all information and content, including images, posts, communications, comments, links and other materials, provided by you to Motivo, either directly or through your Account, and may include Personal Information.
(g) “Motivo Services” means peer consultation, master classes, webinars, training, professional development, continuing education, connecting Therapists and Agencies with Providers for the performance of Provider Services, and similar services provided by Motivo and/or its Affiliates from time to time, whether via the Platform or otherwise.
(h) “Personal Information” means the personal information you provide to Motivo to register your Account, access the Website, use the Platform, the Motivo Services, and/or provide the Provider Services. Personal Information includes, without limitation, your name, email address, home or other physical addresses, telephone number, payment information and any other non-public information that may be used to identify you.
(i) “Professional License” means the state licensure(s) and/or credentials in the mental health field, including LMFT, LCMFT, LPC, LMHC, LCSW, Licensed Psychologist, Certified Addictions Counselor, Certified Alcohol and Drug Counselor, that you have earned.
(j) “Provider Services” means clinical supervision, peer-to-peer consultation, direct therapy services, diagnostic assessments, chart auditing, chart review, training, supervision and clinical paperwork review, and similar services that may be provided by you to Therapists or Agencies via the Platform or otherwise through Motivo.
(k) “Therapist(s)” means an individual mental and/or behavioral health professional who utilizes Motivo to obtain clinical supervision hours which may be necessary for the individual to acquire a Professional License or certification in the field of mental health. As used herein, the term Therapist refers to those Therapists to whom you have agreed to provide Provider Services through the Platform or to whom you were introduced by Motivo or through your use of the Platform or the Motivo Services.
3. Accounts; Provider Profile
To access and use the Platform and to provide the Provider Services, you must (a) create an Account and provide us the required account creation information and (b) create a username and password. You are responsible for the security of your passwords and for any use of your account. You must notify us immediately of any unauthorized use of your password or account. The information you provide to us must be complete and accurate in all respects. You agree to comply with all Applicable Laws with respect to your use of the Platform and provision of the Provider Services.
By creating an Account, you represent and warrant that you are a resident of the United States. You agree that you will not use the Platform or the Motivo Services for any illegal purposes. You agree to be responsible for all Information provided by you and for all activity that occurs with respect to your Account. Your Account is personal to you and may not be transferred. You agree that you will not allow any person access to your Account and that you will not access any other person’s Account.
In addition to your Account, you agree to provide and maintain an accurate Provider profile, which will be accessible to anyone utilizing Motivo Services. You hereby acknowledge and expressly consent to Motivo’s right to share your profile and contact information, including e-mail address, with Therapists and Agencies in order to facilitate the Motivo Services and Provider Services. Your Provider profile must not contain any misleading or false statements including, without limitation, statements regarding your eligibility to serve as a Clinical Supervisor, the status of your Professional License, your credentials or experience. You acknowledge and agree that Motivo has no obligation to protect the confidentiality of the information in your Provider profile and you agree not to include any health or other private information within your Provider profile that you do not wish to be publicly accessible.
4. Your Obligations
When providing the Provider Services, you agree to:
(a) Hold and maintain the necessary credentials and satisfy all continuing education requirements for your Professional License(s) indicated in your Account, and promptly update your Account as necessary to accurately reflect your Professional License(s) (and any suspension, revocation, or other change therein) at all times.
(b) Maintain customary levels of professional liability insurance.
(c) Maintain a thorough understanding of the professional licensure/credential requirements applicable to the Provider Services, including, without limitation, the clinical supervision and tele-supervision requirements (for example, number of hours required and whether those hours can be obtained through tele-supervision) for the state or other geographic area with respect to which your Provider Services are provided. Each state’s requirements for clinical supervision vary and may change periodically and you acknowledge and agree that Motivo is not responsible for tracking each state’s or geographic area’s requirements for supervision, or advising you regarding the same.
(d) Make yourself reasonably available to Therapists and Agencies to whom you provide Provider Services, timely respond to inquiries from Therapists and Agencies to whom you provide Provider Services and complete any documents necessary for the Therapists and Agencies to whom you provide Provider Services as needed to fulfill the applicable requirements with respect to the Provider Services (for example, to establish the Therapist’s participation in the clinical supervision hours).
(e) Promptly notify Motivo in writing of any inquiries about your fitness or capability to maintain your Professional License(s) or any past, pending or threatened malpractice claims.
(f) Not misrepresent in any manner the foregoing on the Platform, in your Account, or to any actual or potential Therapist or Agency.
(g) Promptly notify Motivo and the applicable Therapist at least twenty-four (24) hours prior to any scheduled session with a Therapist if you wish to cancel, reschedule, or are otherwise unable to attend such session.
(h) Promptly notify Motivo (and the Therapists and Agencies, as applicable) of any change with respect to your performance of any of the obligations set forth above.
In addition, to the extent you collect, receive, acquire, record, use, process, store, or otherwise access data that constitutes protected health information (“PHI”) as defined in the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), from a Therapist or Agency, or otherwise through your use of the Motivo Services or provision of the Provider Services, you agree to comply with all HIPAA requirements and Applicable Law with respect to such PHI and agree to execute a Business Associate Agreement with Motivo (and/or the applicable Agency) in the form provided by Motivo and/or the applicable Agency (each, a “Business Associate Agreement”). Notwithstanding the foregoing, you are prohibited from uploading or otherwise transmitting any PHI within your Account and will indemnify, defend, and hold Motivo harmless with respect to any claims arising out of or related to your use or misuse of PHI or breach of the Business Associate Agreement.
Motivo reserves the right to suspend your access to the Platform, suspend or terminate your Provider Services, and to notify any Therapist or Agency thereof in the event that you are (i) not fulfilling the obligations set forth in these Terms (provided, however, that Motivo has provided you written notice thereof and you have failed to cure such failure within the time period deemed reasonable to Motivo under the applicable circumstances, except in the case of fraud or willful misconduct, in which case Motivo may suspend or terminate immediately without prior notice) or (ii) the subject of any malpractice or licensure suspension claim or proceeding.
In consideration for the Provider Services, Motivo agrees to compensate you in accordance with Motivo’s standard rates, as may be updated by Motivo from time to time. Motivo (via its payment processing vendor or otherwise) reserves the right to reverse and/or otherwise recover payments made to you hereunder and/or offset amounts owed against your future payouts in the event of misrepresentation, fraud, or dispute regarding the amount owed. In addition, Motivo reserves the right to reverse, recover, and/or offset amounts previously paid/owed to you in the event that you fail to fulfill any of your obligations under Section 4 above. Motivo will notify you of the reason(s) for such offset or reversal and supporting evidence upon request.
You acknowledge that Motivo’s Confidential Information includes all Motivo’s Property and all information relating to the business and operations of Motivo that you learn during or prior to the Term of your engagement with Motivo, including the names and other information about Therapists and/or Agencies provided to you by Motivo. You will: (a) safeguard the Confidential Information with the same degree of care that you use to protect your own confidential information, but no less than reasonable care; (b) maintain the confidentiality of Motivo’s Confidential Information; (c) not use the Confidential Information except as permitted to provide the Provider Services; and (d) not disseminate, disclose, sell, publish, or otherwise make available the Confidential Information to any third party without the prior written consent of Motivo. In the event that Motivo shall receive any Confidential Information of yours in conjunction with its provision of the Motivo Services to you, Motivo will (a) safeguard your Confidential Information with the same degree of care that it uses to protect its own confidential information, but no less than reasonable care; (b) maintain the confidentiality of your Confidential Information; (c) not use your Confidential Information except to provide the Motivo Services and as otherwise permitted under these Terms, and (d) except as set forth in these Terms, not disseminate, disclose, sell, publish, or otherwise make available your Confidential Information to any third party without your prior written consent.
A party receiving Confidential Information (a “Receiving Party”) may disclose Confidential Information of the other party (the “Disclosing Party”) if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. Non-Solicitation and Non-Compete Agreement
You covenant and agree that you will not make any attempt to solicit any Therapists, Agencies, other clinical supervisors, or any of Motivo’s clients, independent contractors, agents, vendors or employees to whom you are introduced through Motivo and/or your use of the Platform or Motivo Services, for the purpose of (a) working directly or indirectly with such individual or entity outside of Motivo or (b) hiring or retaining, whether directly or indirectly, such individual or entity to provide the same or similar services provided to or by Motivo in competition with Motivo. In addition, you agree not to use any information, including Confidential Information, you obtain, directly or indirectly, about Motivo, the Platform, the Motivo Services, the Therapists, the Agencies, or Motivo’s business model, to participate in the creation of, or accept employment with, any individual or entity that seeks to compete with Motivo. These non-solicitation and non-compete provisions shall apply so long as you have an Account with Motivo and for the twelve (12) month period following the termination of your Account with Motivo. Motivo understands that you may be in private practice and already serve as clinical supervisor to supervisees outside of Motivo. Notwithstanding anything herein to the contrary, you are not permitted to use the Platform or Motivo Services related to tele-supervision with your existing supervisees or with any non-Motivo supervisees, including, without limitation, any sessions conducted in a group setting with Motivo Therapists and non-Motivo supervisees.
8. Use Restrictions
You agree that you will not: (a) access, monitor, or copy any content or information on the Platform using any robot, spider, scraper, or other automated means or any manual process for any purpose without our express written permission; (b) violate the restrictions in any robot exclusion headers on the Platform or bypass or circumvent other measures employed to prevent or limit access to the Platform; (c) take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure; (d) “frame,” “mirror,” or otherwise incorporate any part of the Platform into any other website without our prior written authorization; (e) violate any applicable local, state, national, or international law or regulation; or (f) access the Platform to engage in any form of fraud or misrepresentation. You understand and agree that Motivo may, in its sole discretion, suspend or terminate your access to the Platform at any time and without notice as may be necessary to enforce the foregoing use restrictions.
To the extent you provide Personal Information about a named person or entity, you represent that you have that person’s or entity’s consent to do so. You acknowledge and agree that you do not receive any Personal Information from us as consideration for the Provider Services or other items provided by you to us. Except as expressly set forth in these Terms, you shall not: (a) have, derive or exercise any rights or benefits regarding Motivo’s Personal Information, (b) Sell Motivo’s Personal Information, or (c) collect, retain, share or use Motivo’s Personal Information except as necessary for the sole purpose of performing the Provider Services. You agree to refrain from taking any action that would cause any transfers of Motivo’s Personal Information, either to you or from you, to qualify as a Sale of Personal Information under the California Consumer Privacy Act (Assembly Bill 375), as amended (the “CCPA”). You understand and will comply with the restrictions set forth in this Section and the applicable requirements of the CCPA. For the purposes of this Section, you are a Service Provider and the terms “Personal Information”, “Sell”, “Sale”, and “Service Provider” shall have the same meaning as in the CCPA.
10. Privacy and Security
We care about the security of your Personal Information contained in your Account. We use a variety of security technologies and procedures to help protect your Personal Information from unauthorized access, use, and disclosure. We continuously work to protect the security of your Personal Information; however, we cannot guarantee that unauthorized third parties will not be able to circumvent our security measures. Please notify us immediately of any unauthorized use of your Account or Personal Information.
11. Assumption of Risks Related to the Services; Disclaimers
YOU KNOWINGLY AND FREELY ASSUME ALL RISK RELATED TO YOUR USE OF THE PLATFORM AND YOUR PROVISION OF THE PROVIDER SERVICES.
THE PLATFORM AND THE MOTIVO SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT WARRANT THAT (a) THE PLATFORM OR THE MOTIVO SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, (b) THE PLATFORM OR THE MOTIVO SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM OR THE MOTIVO SERVICES WILL BE ACCURATE OR RELIABLE, (d) THE QUALITY OF THE PLATFORM OR THE MOTIVO SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM OR THE MOTIVO SERVICES WILL MEET YOUR EXPECTATIONS, AND (e) ANY ERRORS IN THE PLATFORM OR THE MOTIVO SERVICES WILL BE CORRECTED. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE PLATFORM, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) MADE AVAILABLE TO YOU THROUGH THE PLATFORM, SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM MOTIVO, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MOTIVO WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE PLATFORM OR THE MOTIVO SERVICES OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR APPLICATION INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE PLATFORM OR THE MOTIVO SERVICES. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12. Information and Interactive Services
We are not obligated to store or otherwise maintain or backup your Information (or any other user’s information) or your Account or Personal Information.
The Platform may include interactive features and services, including social networking functionality, forums, message boards, ratings or review functionality, and similar services, in which you or third parties may send messages to other users of the Motivo Services, and create, post, or store profile data, photographs, ratings or reviews, and other content on or through the Motivo Services (“Interactive Services”). You are solely responsible for your use of Interactive Services and use them at your own risk.
You agree not to post, transmit, distribute, upload, or otherwise disseminate through the Motivo Services or Interactive Services, or through your provision of Provider Services, any of the following:
(a) Information that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
(b) Information that violates these Terms or Applicable Law, or that causes us or our affiliates, subsidiaries, or partners to violate, any Applicable Law;
(c) Information that infringes or violates, or that may infringe or violate, any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party, or that you otherwise do not have the right to make available;
(d) Confidential Information, personally-identifiable information, or health information (including Protected Health Information (PHI)) of any person or entity, including, without limitation, addresses, phone numbers, email addresses, social security numbers, credit card numbers, and any trade secrets or information for which you have any obligation of confidentiality or material that impersonates any person or entity, or misrepresents your affiliation with the Motivo Services or with any other person or entity;
(e) Information that is or contains any advertising or solicitation, including, without limitation, links to commercial products or services or any political campaigning (except in portions of the Motivo Services that are expressly designated as portions in which such material is allowed);
(f) Comments that are in any way (or that in any way could be perceived as being) derogatory, negative or otherwise inappropriate (as determined in our sole, exclusive and very intolerant discretion) with respect to or in any way related to any child who is under 13 years of age;
(g) Viruses, corrupted data, or other harmful, disruptive, or destructive files, or any unsolicited email, SMS or “spam” messages; or
(h) Information that, in our sole reasonable judgment, is objectionable or restricts or inhibits any person or entity from using or enjoying any Interactive Services or other portions of the Motivo Services, or which may expose us or our users to harm or liability of any nature.
You further agree that you will not modify, adapt or hack the Platform or the Motivo Services or modify another application or platform so as to falsely imply that it is associated with the Platform, the Motivo Services, or Motivo. You agree that you will not reproduce, duplicate, modify, distribute, copy, sell, resell or exploit all or any part of the Platform and/or the Motivo Services.
You understand that the technical processing and transmission of the Platform and the Motivo Services, including your Information, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
We take no responsibility and assume no liability for any Information posted, stored, or uploaded by you or any third party, or for any use of or loss or damage to any of such Information. Although we have no obligation to screen, edit, or monitor any Information posted on or transmitted through the Motivo Services, we reserve the right, and have absolute discretion, to remove, screen, and edit any Information posted, stored, or transmitted on or through the Services at any time and for any reason without notice. All Information that you post and/or communicate on or through the Motivo Services is at your own risk and we will have no obligation or liability regarding the use, misuse or dissemination of such Information by third parties or other users of the Motivo Services.
If you post Information on or through the Motivo Services, then you (a) grant us and our subsidiaries and affiliates a nonexclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such Information throughout the world in any media; (b) grant us and our affiliates, subsidiaries, and sub-licensees the right to use the name that you submit in connection with such Information, if we choose; and (c) represent and warrant that you own and control all of the rights to the Information that you post, or that you otherwise have the right to post such Information to the Platform and the Motivo Services; and that the use and posting of Information you supply does not violate these Terms, will not violate any rights of or cause injury to any person or entity, and will not otherwise create any harm or liability of any type for us or for third parties.
Motivo may make certain materials available to you through the Platform and/or the Motivo Services, including without limitation, sample contracts and notices for supervisors, Agencies, Therapists and their patients (collectively, “Materials”). Such Materials are for informational purposes only and Motivo makes no representations or warranties as to their validity, reliability, legality, or sufficiency. The Materials are not intended to (a) constitute legal advice or (b) create an attorney-client relationship. You acknowledge and agree that each situation is highly fact-specific and requires a knowledge of both state and federal laws. Therefore any party should seek legal advice from a licensed attorney in the relevant jurisdictions with respect to any use of such Materials.
14. Third-Party Content; Third Party Providers
The Platform, the Motivo Services and posts and communications from other users of the Motivo Services may contain links to websites, platforms and content of third parties (“Third-Party Content”) as a service to those interested in this information. We do not monitor, endorse, recommend or adopt, or have any control over, any Third-Party Content. We undertake no responsibility to update or review any Third-Party Content and make no guarantee as to its accuracy, completeness, reliability or suitability for you.
Additionally, if you follow a link or otherwise navigate away from the Platform, please be aware that these Terms will not govern links or websites of Third-Party Content providers. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Content provider to which you navigate from the Platform. You access and use Third-Party Content at your own risk.
The Platform or the Motivo Services may contain advertisements and promotions from third parties. Your business dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party.
You further acknowledge and agree that Motivo may use third party vendors and hosting partners (“Third-Party Providers”) to provide the necessary hardware, software, networking, storage, and related technology required to run the Platform and the Motivo Services (the “Third-Party Services”), including, without limitation, payment processing vendors that will require the ability to connect to your bank account. Your provision of the Provider Services and/or the use of the Platform and/or the Motivo Services may be subject to additional and/or separate terms and conditions from such Third-Party Providers, including, without limitation, the Zoom Reseller Customer Terms of Service, located at https://zoom.us/docs/en-us/EULA-terms-of-service.html, which are incorporated herein by this reference. To the extent there is a conflict between the terms and conditions of any such Third-Party Providers and this Agreement with respect to the corresponding Third-Party Services, the Third-Party Provider’s terms and conditions shall control as to such Third-Party Services.
15. Intellectual Property
The Platform and the Motivo Services, all software (source code and object code) related thereto, all content provided by us or our affiliates or agents, all processes, designs, techniques, concepts, improvements, modifications, inventions and discoveries related to the Platform and the Motivo Services, all trademarks, copyrights, service marks, patents, applications therefore, trade secrets and other intellectual property rights appurtenant thereto and any derivate works thereof related to the Platform and the Motivo Services are and shall remain our exclusive property. No use of the Platform and the Motivo Services shall be deemed to transfer title, or grant a license to the any of the foregoing. Except as otherwise set forth herein, Information that you post or communicate to other users shall, as between us and you, be your sole and exclusive property.
(b) Our Trademarks.
All graphics, logos, page headers, button icons, scripts, and service names are trademarks or trade dress (collectively, “Trademarks”) on the Platform belongs to Motivo or its licensors. Unless you and we agree otherwise in writing, Motivo’s Trademarks may not be used or displayed in connection with any product or service that is not Motivo’s, in any manner that is likely to cause confusion, or in any manner that disparages or discredits Motivo. All use of the Trademarks must be in accordance with Motivo’s trademark policies then in effect. Trademarks not owned by Motivo that appear on the Platform are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Motivo. Trademarks that are not owned by Motivo may not be used or displayed in any manner except with the written permission of the owners of those Trademarks.
(c) Our Copyrights.
All content (other than your Information and Third-Party Content) included on the Platform or displayed through the Motivo Services such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Motivo or its licensors and protected by U.S. and international copyright laws. The compilation of all content on the Platform is the exclusive property of Motivo and protected by U.S. and international copyright laws.
You may not duplicate, copy, or reuse any portion of our visual design elements or concepts without our prior express written permission. Furthermore, you shall not, nor permit any other party to, (a) disassemble, decompile, decrypt, or reverse engineer, or in any way attempt to discover or reproduce source code for any part of the Platform or the Motivo Services; (b) alter, modify, or prepare derivative works based on the Platform or the Motivo Services or any materials related thereto; or (c) use any part of the Platform or the Motivo Services or any materials related thereto to create, invent or develop any computer program or other invention, work or device that performs, replicates, or utilizes the same or substantially similar functions as the Platform and or Motivo Services or any materials related thereto.
Any materials, including but not limited to comments, suggestions, ideas, reviews, or other information, provided by you in the form of email or other submissions to us (excluding Personal Information you provide in accordance with these Terms) (collectively “Feedback”), are non-confidential and you hereby grant to us and our subsidiaries and affiliates a nonexclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use your Feedback for any purpose without compensation or attribution to you, including, without limitation, to improve the Platform and Services, to copy, publicly perform and display, reproduce, promote, distribute, reformat, modify, translate, remove, analyze, commercialize, and/or prepare derivative works therefrom and allow others to do the same.
16. Notices; Electronic Communications and Signatures
Any notices required or permitted by the terms of this Agreement shall be given by email, recognized courier service, registered or certified mail, return receipt requested, addressed to the other party as follows: (a) if to Motivo, to: 1717 East Cary Street, Richmond, VA 23223, Attn: CEO; [email protected] (b) if to you, to the address designated in your Account, or in either case to such other address as such party may designate by ten (10) days advance written notice to the other party in accordance with this Section. Any such notice shall be deemed to have been given on the earliest of receipt, one business day following delivery by the sender to recipient’s email address or to a recognized courier service, or three business days following mailing by registered or certified mail. You expressly consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Platform. You acknowledge and agree that an electronic signature provided or acknowledged by you on your session notes or otherwise with respect to your Provider Services shall be deemed to have been duly and validly delivered and be valid and effective for all purposes, provided that such electronic signature and transmission method complies with the U.S. federal ESIGN Act of 2000 (e.g., www.docusign.com).
17. Cancellation and Termination
Although we will be sorry to see you go, you are entitled to terminate your Account at any time. All cancellations must be made by logging into your Account, going to the Account settings and cancelling the Account. We have the right at any time to suspend or terminate your Account and refuse any and all current or future use of the Platform and/or the Motivo Services for any reason or no reason. We cannot guarantee that your Information or Account or Personal Information will be available to you following a cancellation or suspension.
18. Release and Indemnification
To the maximum extent permitted by applicable law, on behalf of yourself and your personal representatives and heirs, you hereby release and waive all claims against us and our respective affiliates, partners, officers, employees, agents, representatives, consultants, licensors, co-branders or other collaborators, successors and assigns (collectively, “Covered Persons”), from all liability for claims, actions, losses, damages (actual and/or consequential), costs and expenses (including litigation costs and reasonable attorneys’ fees) of every kind and nature, including, without limitation, bodily injury, property damage, wrongful death, emotional distress, loss of services, and/or all other damages or harm, whether to you, to Motivo, or to any third party (including Therapists and Agencies) arising from or in any way related to your access to or use of the Platform or the Motivo Services and/or your provision of the Provider Services. You will indemnify, defend and hold Covered Persons harmless against any and all claims, costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of attorneys and other professionals) (collectively, “Claims”) that may arise from or are related to your access to or use of the Platform or the Motivo Services and/or your provision of the Provider Services, including, without limitation, your breach of any representation or warranty in these Terms. You will control the defense and settlement of any Claim that is subject to this indemnification, provided that we may at any time elect to take over control of the defense and settlement of any such Claim. In any event, you will not settle any such Claim without our prior written consent.
We will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that your use of the Platform in accordance with these Terms infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, a Claim Against You, provided that you (a) promptly give us written notice of the Claim Against You, (b) give us sole control of the defense and settlement of the Claim Against You (except that we may not settle any Claim Against You unless it unconditionally releases you of all liability), and (c) give us all reasonable assistance, at our expense. If we receive information about an infringement or misappropriation claim related to a Platform, we may in our discretion and at no cost to you (i) modify the Platform so that it no longer infringes or misappropriates, (ii) obtain a license for your continued use of the Platform in accordance with these Terms, or (iii) terminate your right to use the Platform upon thirty (30) days’ written notice. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from a third party product or service or your breach of these Terms.
19. Modifications to the Platform and the Motivo Services
We reserve the right at any time and from time to time to modify, upgrade or discontinue, temporarily or permanently, the Platform and the Motivo Services that we offer, with or without notice. We may upgrade the Platform and the Motivo Services and you agree that these Terms will apply to such upgrades. You agree that we will not be liable to you or any third party with respect to any such modification, upgrade or discontinuance of the Platform or the Motivo Services.
20. Limitation of Liability
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT MOTIVO SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MOTIVO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE PLATFORM OR THE MOTIVO SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PLATFORM OR THE MOTIVO SERVICES; (c) UNAUTHORIZED ACCESS TO TRANSMISSIONS OR ALTERATION OF YOUR INFORMATION; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY WITH RESPECT TO THE PLATFORM OR THE MOTIVO SERVICES; (e) OR ANY OTHER MATTER RELATING TO THE PLATFORM, THE MOTIVO SERVICES, OR THESE TERMS. IN NO EVENT SHALL OUR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE PLATFORM, THE MOTIVO SERVICES, OR THESE TERMS EXCEED THE FEES PAID TO YOU BY MOTIVO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
21. Site Policies, Modification and Severability
Please review our other policies posted on the Platform. We reserve the right to make changes to our site, policies, and these Terms at any time. Any such modification will be effective as of the date posted on the Platform. It is your responsibility to review our Terms and Conditions from time to time to ensure that you continue to agree with our Terms and Conditions. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition. If we make material changes to these Terms, we will notify you of such changes in accordance with Section 17 (Notices) above. If you no longer agree to these Terms after a modification, you must immediately cease using the Platform and the Services. All new or modified features related to the Platform and the Services, including the release of new features, tools and resources, will be subject to these Terms.
22. General Conditions.
(b) Severability. If any portion of these Terms is determined to be illegal, invalid, or unenforceable, such illegality, invalidity or unenforceability shall not affect any other portion of these Terms.
(c) Assignment. You may not assign any of your rights or obligations under these Terms to anyone else. We may assign our rights to any other individual or entity at our discretion.
(d) Governing Law; Venue. These Terms are intended as a contract under and shall be construed and enforceable (both as to validity and performance), shall be interpreted and the rights and obligations of the parties shall be determined in accordance with the laws and procedures and provisions of the Commonwealth of Virginia (other than conflict of law rules which might result in the application of the laws of any other jurisdiction). We each agree to submit to the exclusive personal jurisdiction of the state and federal courts located in the Commonwealth of Virginia.
(e) Attorneys’ Fees. In the event that any litigation or dispute resolution procedure is utilized to enforce the provisions of these Terms, the prevailing party in such action shall be entitled to the recovery of its reasonable attorneys’ fees and expenses, court costs, dispute resolution costs and expenses, expert witness fees and expenses and such other costs as are fixed by the court or other party serving to resolve such dispute.
(f) Waiver. The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. These Terms and the other policies, terms and conditions referred to in these Terms constitute the entire agreement between you and us and will govern your use of the Platform and the Motivo Services, and your provision of the Provider Services, superseding any prior agreements between you and us regarding the subject matter hereof.
(g) No Employment Status. Motivo does not have an employer-employee relationship with you. You are providing the Provider Services as an independent contractor of Motivo and agree to use your own equipment and supplies in the performance of the Provider Services. All persons employed by you shall be your employees or independent contractors. You shall be fully responsible for yourself and them, including, without limitation, with respect to compensation to your employees and independent contractors, withholding taxes, worker’s compensation, professional liability insurance and other insurance and other required payments.