There are THREE agreements below. “Terms and Conditions of Use”, “Mendability Suicide Prevention Mandate”, and “SENSORY ENRICHMENT THERAPY MODALITY AGREEMENT” You must read and agree to all three agreements to take the certification course. You will also be shown these agreements separately and agree to them separately and specifically during the registration of a professional account with Mendability.
Terms and Conditions of Use
WE ADVISE USERS TO ALWAYS SEEK THE ADVICE OF A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER WITH ANY QUESTIONS REGARDING HEALTH OR MEDICAL CONDITIONS.
THE SITE DOES NOT PROVIDE MEDICAL ADVICE
Welcome to mendability.com (the “Site“), websites owned and operated by Mendability LLC (“Mendability“). The Site or any product or service offered on the Site are provided by Mendability, conditional on your acceptance of the terms and conditions of use set out below (referred to as the “Terms and Conditions of Use” or the “Agreement“).
Mendability reserves the right to modify or amend the Terms and Conditions of Use without notice at any time. Any changes will be posted at the Terms and Conditions of Use section of the Site and any such changes will become binding and effective on the date the changes are posted. As such, it is important that the Terms and Conditions of Use be read on a regular basis so that you are aware of any such changes.
IMPORTANT – READ BEFORE ACCESSING OR USING THE SITE OR ANY SERVICES, SOFTWARE, GAMES, PROGRAMS, QUESTIONNAIRES, TOOLS, APPLICATIONS, FEATURES OR FUNCTIONALITY AVAILABLE ON OR THROUGH THE SITE (COLLECTIVELY THE “SERVICES”).
BY SELECTING THE “CONTINUE” BUTTON or BY SELECTING THE “I have read, understood and I agree to the above Terms and Conditions of use” CHECKBOX ON THE TERMS AND CONDITIONS FORM, OR BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU AFFIRM THAT YOU ARE OVER THE AGE OF 18, AS THE SITE IS NOT INTENDED FOR CHILDREN.
IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, YOU AGREE THAT SERVICES WILL NOT BE PROVIDED AND YOU WILL NOT ATTEMPT TO ACCESS OR USE THE SITE OR SERVICES. THE SITE AND ITS SERVICES ARE FOR CONSUMER EDUCATION USE ONLY.
NOTHING CONTAINED IN THE SITE IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL ADVICE, DIAGNOSIS OR TREATMENT.
BY SELECTING THE “Neither I nor any person within my care on Mendability is at risk for suicide.” CHECKBOX ON THE TERMS AND CONDITIONS FORM, OR BY ACCESSING OR USING THE SERVICES, YOU AGREE THAT THE SITE IS NEITHER INTENDED TO BE USED BY INDIVIDUALS NOR FOR INDIVIDUALS WHO ARE AT RISK FOR SUICIDE AND THAT NEITHER YOU NOR ANYONE IN YOUR CARE ON MENDABILITY IS AT RISK FOR SUICIDE. IF YOU ARE AT RISK FOR SUICIDE OR YOU INTEND TO USE MENDABILITY TO WORK WITH ANYONE IN YOUR CARE WHO IS AT RISK FOR SUICIDE, THEN YOU WILL NOT ATTEMPT TO ACCESS OR USE THE SITE OR SERVICES.
IF YOU OR ANY PERSON WITHIN YOUR CARE IS AT RISK FOR SUICIDE, PLEASE SEEK PROFESSIONAL HELP IMMEDIATELY AND PLEASE CALL THE SUICIDE PREVENTION LIFELINE NUMBER 1-800-273-TALK (8255)
The contents of the Site, including any reports generated from use of the Services and any other information, data, analyses, editorial content, graphics, images, audio and video clips, hyperlinks and references (collectively, the “Content“), are for informational purposes only and are not intended to substitute for professional medical advice, diagnosis, or treatment. You should seek the advice of a physician or other qualified health provider with whom you have such a relationship if you have questions regarding any medical or psychiatric condition or if you are experiencing any symptoms of or believe you may have a medical or psychiatric condition, regardless of any information contained within the Content. You should not ignore professional medical advice or delay in seeking it because of any Content. Furthermore, you should not interpret any reports or any other Content as recommending any specific treatment plan, product or course of action. You should always consult your physician or other qualified health provider before starting any new treatment or stopping any treatment that has been prescribed by your physician or other qualified health provider.
Information on the Site is not intended to replace medical advice from a health professional and Mendability does not accept any liability for any error or omission, injury, expense, loss or damage incurred by you or another party as a result of you using or relying on any information contained on the Site or any linked website. All users are urged to seek advice from a qualified health care professional for diagnosis and answers to their medical questions.
While side effects are generally temporary and mild in nature, they may include eating changes, mood swings, sleeping irregularities or changes, seizures in at-risk individuals, increase in crying, changes in the smell of the person’s urine, changes in stool consistency, bladder / bowel incontinence, tantrums, defiance.
PLEASE CALL YOUR DOCTOR OR 911 IMMEDIATELY IF YOU THINK YOU MAY HAVE A MEDICAL OR PSYCHIATRIC EMERGENCY.
- All works and material on the Site, including without limitation, the Content, code and software (the “Materials“) and all organization and presentation of the Materials which form a part of the Site, are the exclusive property of Mendability or its licensors, and are protected by intellectual property laws relating to copyrights, trademarks, trade names, Internet domain names, trade dress and other proprietary rights. Nothing on the Site will be construed as providing, by implication, estoppel or otherwise any license to any proprietary or intellectual property rights in or to any of the Materials to you or any other party. The trademarks, service marks, logos, slogans and Internet domain names on the Site are the exclusive property of Mendability or its licensors. Use of any such property, except as expressly authorized, will constitute a violation of the rights of the owner of the property and a breach of the Terms and Conditions of Use.
Certain portions, components, Services, Content and features of the Site are only available to users who purchase a membership (“Member Services“). The Member Services are not intended to be used by any person under the age of eighteen (18) years old. Should you choose to purchase or subscribe to certain Member Services, you agree as follows:
- When you register for the Member Services you agree to provide accurate and complete personal information and other information necessary for registration. Mendability relies on this information to provide the Content and Services. Mendability also relies on this information to ensure its Services are compliant under law, and thus cannot be liable for any criminal or civil actions against you that may result from you providing false information.
- Once you have registered, you will have a Site account. Mendability has the right, at any time, to place certain limits on your account.
- Once you have registered for the Member Services, you hereby consent to receive periodic email communications from Mendability, which may include new product and service offers and other Site information (“Member Emails“). You may choose to opt out of Member Emails; however, Mendability reserves the right to contact you via email at any time with respect to your Site account and your use of the Member Services.
- Member Services charges begin on the date you register for the Member Services. You agree to pay, using a valid credit card (or other form of payment which Mendability may accept from time to time), the fixed and periodic charges and fees (including any prepayment plan fees for multiple periods) set forth on the Site, applicable taxes, and other charges and fees incurred in order to access the Member Services. The charges and fees on the Site are expressed in US dollars and your credit card or other account will be charged in US dollars, except if signed up prior to August 2014 then the charges will be maintained in the currency originally charged. Those users with grandfathered plans other than those advertized on the site are bound to the original conditions of those plans and if they cancel the account will forfeit their grandfathered plan and pricing. You acknowledge and agree that you will not receive a bill in the mail for your subscription to the Member Services. Mendability will not refund any amounts paid except at its sole discretion on a case-by-case basis, and will not refund any coupons or additional fees. Recurring subscription fees paid by credit card will automatically renew, unless you affirmatively cancel your subscription prior to the beginning of the next applicable period for which the subscription corresponds. If your Member Services are terminated and are then reinstated, the subscriber will be required to pay any new charges and fees set forth on the Site, including but not limited to, registration fees. Mendability reserves the right to increase charges and fees, or to institute new charges or fees at any time, upon reasonable advance notice communicated to you through a posting on the Site or such other means as Mendability may deem appropriate from time to time (including email or conventional mail).
- Mendability reserves the right to change promotion availability, amounts, and exclusivity at any time. Some promotions are exclusive and cannot be combined with other promotions. Coupons must have a valid expiry date and can only be used by one account once. Mendability is not responsible for and will not refund or re-issue lost or previously used coupons, except at its sole discretion. Valid coupons can be used in conjunction with promotion codes, but many promotions are exclusive and you will only be entitled to one promotion in the set of all exclusive promotions.
- In the event Mendability cannot charge your account, Mendability reserves the right to terminate your access to the Member Services.
- In addition to the fees and charges set forth above, you are responsible for all charges and fees associated with connecting to the Site and the Member Services, including without limitation all telephone access lines (including long-distance charges, when applicable), internet service provider fees, telephone and computer equipment, sales taxes and any other fees and charges necessary to access the Site and the Member Services.
- For purposes of your use of the Member Services including identification and billing, you agree to provide Mendability with true, accurate and complete information as required by the membership or sign up process to Member Services (“Account Data“), including your legal name, address, telephone number, email address and applicable billing information (e.g., credit card number and expiration date), and to allow Mendability to share your Account Data with third parties for the purpose of verifying the information you provide and billing your credit card or otherwise charging your account. You agree to maintain and promptly update the Account Data to keep it accurate. Without limiting any other provision of the Terms and Conditions of Use, if you provide any information that is untrue, inaccurate, or incomplete, or Mendability has reasonable grounds to suspect that such is the case, Mendability reserves the right to suspend or terminate your membership or subscription and refuse any and all current or future use by you of the Site (or any portion thereof) or any of the Member Services. You are obligated to check the Site to determine whether your Account Data is current and accurate, and, if not, to correct or update your Account Data including your billing information. You agree to promptly notify Mendability of any changes to your credit card or other billing information while any subscriptions remain outstanding.
- Kits may be offered for sale. Kit arrival dates are not guaranteed, and the purchase is separate and not included as part of the Mendability subscription. Kits purchased from third party suppliers are not the responsibility of Mendability.
- The contents of the kit are intended for use in Mendability therapy supervised at all times by a competent adult. No part of this kit including the packaging is to be used as a toy. Do not allow children or mentally challenged individuals to play with the contents of this kit except under competent adult supervision. Many parts such as small parts, marbles, un-inflated balloons, plastic film, beads, and small balls present a choking hazard or other hazard.
BREACH OF CONTRACT
Mendability can disable your Site account, and take all further action against you it deems appropriate if, in the opinion of Mendability:
- you have violated the terms of this Agreement;
- you have Misused the Site, as defined below, even if you are unaware of this Misuse; or
- a public authority requests we disable your Site account.
SECURITY AND PASSWORDS
You agree not to share your username or password with others and to choose a password that cannot be easily guessed by others. Mendability is not responsible for any consequences which may result from you sharing your username or password. If Mendability has reason to believe that the security of your Site account has been compromised it retains the right to:
- ask you to change your password; and/or
- disable access to your Site account. If this should occur, you will be alerted by a Member Email.
You must inform Mendability immediately if you have reason to believe your password has become known to others, or if the security of your username or password has become compromised in any way.
If you make any such submission you agree that you will not send or transmit to Mendability by email, (including through the email addresses listed on the “Contact Us” page) or any other communication means any communication or content that infringes or violates any rights of any party. If you submit any business information, idea, concept or invention to Mendability by email, you agree such submission is non-confidential for all purposes.
If you make any submission to a Public Area or if you submit any business information, idea, concept or invention to Mendability by email or other communication means, you automatically grant-or warrant that the owner of such content or intellectual property has expressly granted Mendability a royalty-free, perpetual, irrevocable, world-wide nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the communication or content in any media or medium, or any form, format, or forum now known or hereafter developed. Mendability may sublicense its rights through multiple tiers of sublicenses. If you wish to keep any business information, ideas, concepts or inventions private or proprietary, do not submit them to the Public Areas or to Mendability by email.
USER SUBMISSIONS — IMAGE, VIDEO, AUDIO FILES
You agree to only post or upload media including but not limited to photos, videos and audio that you have taken yourself or that you have all rights to transmit and license and which do not violate trademark, copyright, privacy or any other rights of any other person. To protect your privacy, you agree that you will not submit any media that contains personal information which may include name, phone number, email address or web site URL of you or of anyone else. Uploading media like images or video of other people without their permission is strictly prohibited. By uploading any media on the Site, you warrant that you have permission from all persons appearing in your media for you to make this contribution and grant rights described herein. Never post a picture or video of or with someone else unless you have their explicit permission.
By uploading any media you: (i) grant to Mendability a perpetual, non-exclusive, worldwide, royalty-free license to use, copy, print, display, reproduce, modify, publish, post, transmit and distribute the media and any material included in the media; (ii) certify that any person pictured in the submitted media (or, if a minor, his/her parent/legal guardian) authorizes Mendability to use, copy, print, display, reproduce, modify, publish, post, transmit and distribute the media and any material included in such media; and (iii) agree to indemnify Mendability and its affiliates, directors, officers and employees and hold them harmless from any and all claims and expenses, including attorneys’ fees, arising from the media and/or your failure to comply with these Terms and Conditions of Use.
Mendability reserves the right to review all media prior to submission to the Site and to remove any media for any reason, at any time, without prior notice, in their sole discretion.
If you use a Public Area, you are solely responsible for your own communications, the consequences of posting those communications, and your reliance on any communications found in the Public Areas. Mendability is not responsible for the consequences of any communications in the Public Areas. In cases where you feel threatened or believe someone else is in danger, you should contact your local law enforcement agency immediately. If you think you may have a medical emergency, call your doctor or 911 immediately.
In consideration of access to use the Public Areas, you agree that the following actions shall constitute a material breach of these Terms and Conditions of Use:
- using a Public Area for any purpose in violation of local, provincial, state, national, or international laws;
- posting material that infringes the intellectual property rights of others or the privacy or publicity rights of others;
- posting material that is unlawful, obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity as determined by Mendability in its sole discretion;
- posting advertisements or solicitations of business;
- disrupting the normal flow of dialogue, or posting comments that are not related to the topic being discussed;
- posting chain letters or pyramid schemes;
- impersonating another person;
- distributing viruses or other harmful computer code;
- harvesting or otherwise collecting information about others, including email addresses, without their identification for posting or viewing comments;
- allowing any other person or entity to use your identification for posting or viewing comments;
- posting the same note more than once or “spamming”; or
- engaging in any other conduct that restricts or inhibits any other person from using or enjoying the Public Areas or the Site, or which, in the judgment of Mendability, exposes Mendability or any of its members, users, customers, licensors or suppliers to any liability or detriment of any type.
Mendability reserves the right but is not obligated to do any or all of the following:
- record the dialogue in Public Areas;
- investigate an allegation that a communication does not conform to the terms of this section and determine in its sole discretion to remove or request the removal of the communication(s);
- remove communications which are abusive, illegal, or disruptive, or that otherwise fail to conform with these Terms and Conditions of Use;
- terminate a user or member’s access to any or all Public Areas and/or the Site upon any breach of these Terms and Conditions of Use;
- monitor, edit, or disclose any communication in the Public Areas; and/or
- edit or delete any communication(s) posted on the Site, regardless of whether such communication(s) violate these standards.
Mendability shall have no liability or responsibility to users or members of the Site and Services or any other person or entity for performance or non-performance of the aforementioned activities.
PUBLIC AREA DISCLAIMER
The opinions expressed by those providing comments in any Public Areas do not necessarily reflect the opinions of Mendability. The Public Areas comment sections are not intended as, and is not, a substitute for professional medical advice. All decisions about clinical care should be made in consultation with your treating physician.
When participating in a Public Area, never assume that people are who they say they are, know what they say they know, or are affiliated with whom they say they are affiliated. Mendability is not responsible for the content or accuracy of any information, and will not be responsible for any reliance or decisions made based on such information. When using a Public Area, you may not post, transmit, link to, or otherwise distribute any information, materials or content that do not generally pertain to the designated topic or theme of the particular Public Area. Use of a Public Area for commercial purposes of any kind is strictly prohibited. Please note that Mendability reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of these Terms and Conditions of Use.
COOKIES AND WEB BEACONS
- To enhance your experience with the Site, Mendability reserves the right to use “cookies”. Cookies are text files placed in your computer’s browser to store your preferences. Cookies, by themselves, do not tell Mendability your email address or other personal information unless you choose to provide this information to Mendability. However, once you choose to furnish the Site with personal information, this information may be linked to the data stored in the cookie.
- “Web beacons” or clear .gifs are small pieces of code placed on a web page to monitor the behaviour and collect data about the visitors viewing a web page. For example, web beacons can be used to count the users who visit a web page or to deliver a cookie to the browser of a visitor viewing that page. Mendability may use web beacons on the Site from time to time for this and other purposes.
- In consideration of the availability, and your use of, the Site and Services, you agree to comply with all applicable laws and the Terms and Conditions of Use when using the Site and Services. You also agree that neither you, nor any person influenced by you, or any person acting under your direction, will:
- use the Site or Services in such a way that violates applicable laws, licence agreements, copyright, or other intellectual property rights;
- post, transmit, link to, or otherwise distribute any materials, information, or content constituting, advocating or encouraging conduct that would constitute a criminal offence or give rise to civil liability, or otherwise use the Site or Services in a manner which is contrary to law or would serve to restrict or inhibit any other use from using or enjoying the Site or Services, or the Internet;
- post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful material or information; or
- use the Site or Services to commit illegal acts, “hack” the Site, or modify or interfere with the Site or Services in any way.
Any of the above actions will constitute “Misuse“.
Any acts you commit, or cause to be committed, which, in the sole opinion of Mendability, intentionally expose the Site or Services to cyber threats such as viruses or hacking, increase the likelihood of a security breach, or cause or may cause any reputational harm to Mendability will also constitute Misuse. Mendability retains the right to take steps to identify and prevent Misuse of the Site or Services.
ADDITIONAL RESTRICTIONS AND PROHIBITED USES
Mendability limits the uses of the account. Except with our written permission, you shall not:
- Attempt to impersonate another person or use another person’s account information without authorization;
- Use or distribute Mendability for your own scientific or clinical research purposes;
- Violate or attempt to violate Mendability’s security features, including logging into a server that you are not authorized to access, or probing the vulnerability of Mendability systems and networks;
- Redistribute, decompile, reverse engineer, publish, or copy any part of Mendability, including cracking its source files;
- Use Mendability for the purpose of creating a product with a substantially similar look, feel, design or similar therapeutic approach;
- Access or search Mendability by any means other than our publicly supported interfaces (for example, “scraping”);
- Interfere with the use of Mendability by others or their enjoyment of Mendability;
- Resell or otherwise offer for sale Mendability or elements of Mendability to other parties;
- Use any trademarks, exercise names, trade names, service marks, copyrights, or logos of Mendability, in unsolicited mailings, spam material, contests or surveys, or to create the impression that such items are associated with you;
- Violate any third party’s rights, including intellectual property or privacy rights;
- Threaten, stalk, harm, or harass others; or
- Engage in activity in connection that is fraudulent, abusive, defamatory, illegal or otherwise inappropriate.
Engaging in prohibited uses is grounds for immediate termination of your Mendability account, and may also subject you to civil or criminal penalties.
You will be liable for any damage resulting from the following:
- your Misuse of the Site;
- your use of the Site or Services when it was the basis for someone taking legal action against Mendability for violations of applicable laws, license agreements, copyright or other intellectual property rights; or
- your use of the Site or Services resulted in others being unable to use the Site or Services properly, resulting in legal action against Mendability.
MENDABILITY LIMITATION OF LIABILITY
The use of the Site, Services and the Content is at your own risk.
When using the Site, information will be transmitted over a medium that may be beyond the control and jurisdiction of Mendability. Accordingly, Mendability assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use of the Site.
The Site, Services and the Content are provided on an “as is” basis. MENDABILITY, ITS LICENSORS, AND ITS SUPPLIERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES AND CONDITIONS EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS AND FITNESS FOR PARTICULAR PURPOSE. Without limiting the foregoing, Mendability, its licensors, and its suppliers make no representations or warranties that the Site, Services or Content will meet your needs, or about the accuracy, reliability, completeness, currentness or timeliness of the Services and Content, software, text, graphics, links or communications provided on or through the use of the Site. Mendability does not warrant that the Site, Services or Content are accurate, reliable or correct, that the Site will be available at any particular time or location, that any defects or errors will be corrected or that the Site, Services or Content are free of viruses or other harmful components. Further, nothing on the Site constitutes advice, nor should the Site or any part thereof, be relied upon in making, or refraining from making, any decision, medical or otherwise.
Mendability is not liable for any losses you may suffer which result from any viruses, “Trojan Horses”, “worms”, “cancelbots” or other harmful, disruptive or destructive files or computer programs that may infect your computer equipment or other property on account of your access to, or use of the Site, Services or Content. Mendability is not liable for any losses you may suffer which result from any attack from third parties on your Site account, Account Data or the Site.
In the event that you have a dispute with one or more users or members, Mendability hereby disclaims and you hereby waive any recourse to or against Mendability and agree to release and indemnify Mendability and its directors, officers, employees, agents and third-party contractors and suppliers from and against any and all claims, demands, damages, losses, costs and expenses of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes or any breach of these Terms and Conditions of Use.
You understand and agree that any material or data downloaded or otherwise obtained through the use of the Site is done at your own discretion and risk and that Mendability will not be responsible for any damage or loss suffered by you as a result of the download or use of such material or data, including damage to your computer system or loss of data.
Under no circumstances will Mendability, its licensors, its suppliers or any third parties mentioned on the Site be liable to you for any damages (including, without limitation, incidental and consequential damages, personal injury/wrongful death, lost profits, or damages resulting from lost data or business interruption) resulting from use of or inability to use the Site, Services or Content, whether based on warranty, contract, tort or any other legal theory, and whether or not Mendability, its licensors, its suppliers, or any third parties mentioned on the Site has been informed in advance or ought reasonably to have known of the potential for such damages.
The entire liability of Mendability, its licensors and its suppliers, and your exclusive recourse, in the event of any claim(s) for which the Mendability parties or any of them may properly be held liable under this Agreement, regardless of the form of action or basis of liability (including statute, contract, tort, negligence, gross negligence, strict liability, breach of a fundamental term or fundamental breach), shall be limited in the aggregate (regardless of the number of claims), to the amounts paid by you to Mendability. No legal action or proceeding arising out of this Agreement, regardless of form or basis in law, may be brought by you against Mendability or any of the other Mendability parties more than twelve (12) months after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known to, or ought reasonably to have been discovered by you. The limitation of liability provisions of this Agreement reflect any informed voluntary allocation of the risks (known and unknown) that may exist in connection with the performance by Mendability of their respective obligations and responsibilities hereunder and such voluntary risk allocation represents a material part of the Agreement reached between you and Mendability in respect of the Site, Services and Content.
The Site may contain links to other websites maintained by independent third parties over which Mendability has no control. Any such links are provided solely as a convenience for users of the Site and do not constitute an endorsement by Mendability of the content of such third party sites. Mendability makes no representations and disclaims all responsibility for such privacy practices, contents or accuracy of content on any such third party websites. Your use of such links is solely at your own risk. Links to this website may also be provided from other sites either known or unknown to Mendability and access to any other website linked to or from the Site is at your own risk. The Internet is not a secure medium and is subject to possible interception, loss, corruption, or alteration of communication for which Mendability assumes no liability.
Mendability specifically disclaims any liability to any users in jurisdictions in which the uses of services such as those offered by Mendability are illegal. Mendability is not liable for any consequences resulting from the use of the Site, Services or Content by users in jurisdictions where such use is illegal.
You agree to defend, indemnify, and hold Mendability, its officers, directors, employees, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your violation of these Terms and Conditions of Use.
Mendability will not be liable for any delay or failure to perform to the extent due to causes beyond its reasonable control.
TRANSFER OF RIGHTS
You cannot transfer your rights or commitments arising from this Agreement to anyone. Mendability retains the right to transfer its rights or obligations arising from this Agreement to others without your consent.
You cannot transfer your account to anyone without Mendability’s consent.
You agree that sending an email to the email address associated with your Site account and Account Data will constitute effective notice. If you need to contact Mendability you can do so through the Site, and an email sent to the Mendability email address displayed on the Site will constitute effective notice. Notice will be effective once the email is sent, unless the party sending the email becomes aware that it was not deliverable.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS CAPABLE IN LAW OF BEING SUBMITTED TO BINDING ARBITRATION) AGAINST MENDABILITY, its agents, employees, officers, directors, successors, assigns or affiliates (collectively for purposes of this paragraph, “Mendability“) arising from or relating to these Terms and Conditions of Use, their interpretation, or the breach, termination or validity thereof, the relationships between the parties, whether pre-existing, present or future, (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to these Terms and Conditions of Use), Mendability’s advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY according to the Utah Uniform Arbitration Act 78B-11. The place of arbitration shall be American Fork, Utah, USA. The language of the arbitration shall be English. The arbitration will be limited solely to the dispute or controversy between the user and Mendability. Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
This Agreement shall be deemed to have been made and performed exclusively in Utah and shall be governed by and interpreted in accordance with the laws of the State of Utah and the federal laws of the United States of America applicable therein without regard to conflict of laws principles. Subject to the Arbitration provision above, you agree to submit to the exclusive jurisdiction of the Courts of the State of Utah, and hereby waive the application of any conflict of laws or rules that would result in a different forum, including physical location, residence or domicile.
Mendability’s failure to insist upon or enforce strict performance of any provision of this Agreement will not be construed as a waiver of any provision or right.
The individual clauses of this Agreement are valid independent of each other and, should any part of this Agreement be declared invalid or unenforceable by a court of competent jurisdiction, this will not affect the validity of any remaining portion and such remaining portion shall remain in full force and effect as if the invalid portion of this Agreement had been eliminated.
This Agreement was written in English and, in any legal dispute, this English version will be legally binding.
ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED.
I CERTIFY THAT I AM NOT A MINOR AND THAT I AM ABLE TO ENTER INTO THIS AGREEMENT; AND
I ACKNOWLEDGE HAVING READ THE TERMS AND CONDITIONS OF USE AND HAVING PRINTED A COPY OF THE TERMS AND CONDITIONS OF USE; AND
I ACKNOWLEDGE AND UNDERSTAND THAT THE SITE DOES NOT PROVIDE MEDICAL ADVICE AND THAT THE INFORMATION ON THE SITE IS NOT INTENDED TO REPLACE MEDICAL ADVICE FROM A HEALTH PROFESSIONAL; AND
I ACKNOWLEDGE THAT I AM NOT AT RISK FOR SUICIDE NOR INTEND TO USE MENDABILITY TO WORK WITH ANYONE IN MY CARE WHO IS AT RISK FOR SUICIDE; AND
I UNDERSTAND THAT IN ORDER TO USE THE SITE, I MUST ACCEPT AND ABIDE BY THESE TERMS AND CONDITIONS OF USE. OTHERWISE I WILL NOT ACCESS OR USE THE SITE, SERVICES OR CONTENT.
Mendability Suicide Prevention Mandate
AS A REQUIREMENT FOR JOINT COMMISSION CERTIFICATION AND FOR YOUR HEALTH AND SAFETY AND THE HEALTH AND SAFETY OF THOSE WITHIN YOUR CARE, WE ARE REQUIRED TO HELP YOU IDENTIFY SPECIFIC CHARACTERISTICS AND ENVIRONMENTAL FEATURES THAT MAY INCREASE OR DECREASE THE RISK OF SUICIDE AND TO PROVIDE YOU WITH SUICIDE PREVENTION INFORMATION.
BY USING MENDABILITY SERVICES OR THIS SITE YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD THE CONTENTS OF THIS DOCUMENT AND CERTIFY THAT YOU AGREE TO SEEK PROFESSIONAL HELP IF YOU OR ANYONE WITHIN YOUR CARE SHOWS OR DEVELOPS SIGNS OF SUICIDE RISK. YOU FURTHER CERTIFY THAT NEITHER YOU NOR ANY PERSON WITHIN YOUR CARE ON MENDABILITY IS AT RISK FOR SUICIDE.
If after you have read the document you feel unqualified to assess the suicide risk of the individual, you must seek professional help in determining the suicide risk prior to proceeding any further with any interactions on Mendability.
Suicide Emergency / Professional Help
24/7 lifeline: 1-800-273-8255 (TALK)
SUICIDE RISK ASSESSMENT GUIDE
This introduction provides general information regarding the nature and prevalence of suicidal behaviors and factors associated with increased risk for suicide and suicide attempts.
Suicidal thoughts and behaviors (including suicide attempts and death by suicide) are commonly found at increased rates among individuals with psychiatric disorders, especially major depressive disorder, bipolar disorders, schizophrenia, PTSD, anxiety, chemical dependency, and personality disorders (e.g., antisocial and borderline). A history of a suicide attempt is the strongest predictor of future suicide attempts, as well as death by suicide. Intentional self-harm (i.e., intentional self-injury without the expressed intent to die) is also associated with long-term risk for repeated attempts as well as death by suicide.
Psychiatric co-morbidity (greater than one psychiatric disorder present at the same time) increases risk for suicide, especially when substance abuse or depressive symptoms coexist with another psychiatric disorder or condition.
A number of psychosocial factors are also associated with risk for suicide and suicide attempts. These include recent life events such as losses (esp. employment, careers, finances, housing, marital relationships, physical health, and a sense of a future), and chronic or long-term problems such as relationship difficulties, unemployment, and problems with the legal authorities (legal charges). Psychological states of acute or extreme distress (especially humiliation, despair, guilt and shame) are often present in association with suicidal ideation, planning and attempts. While not uniformly predictive of suicidal ideation and behavior, they are warning signs of psychological vulnerability and indicate a need for mental health evaluation to minimize immediate discomfort and to evaluate suicide risk.
Certain physical disorders are associated with an increased risk for suicide including diseases of the central nervous system (epilepsy, tumors, Huntington’s Chorea, Alzheimer’s Disease, Multiple Sclerosis, spinal cord injuries, and traumatic brain injury), cancers (esp. head and neck), autoimmune diseases, renal disease, and HIV/AIDS. Chronic pain syndromes can contribute substantially to increased suicide risk in affected individuals.
Patients with traumatic brain injuries may be at increased risk for suicide. In comparison to the general population TBI survivors are at increased risk for suicide ideation (Simpson and Tate, 2002), suicide attempts (Silver et al. 2001) and suicide completions (Teasdale and Engberg, 2001). TBI-related sequelae can be enduring and may include motor disturbances, sensory deficits, and psychiatric symptoms (such as depression, anxiety, psychosis, and personality changes) as well as cognitive dysfunction. These cognitive impairments include impaired attention, concentration, processing speed, memory, language and communication, problem solving, concept formation, judgment, and initiation. Another important TBI sequelae that contributes to suicidal risk is the frequent increase in impulsivity. These impairments may lead to a life-long increased suicide risk which requires constant attention.
Although relatively rare, suicidal thoughts and behaviors are not uncommonly reported in the general population. A recent national survey (Kessler, et al., 1999) found that 13.5 % of Americans report a history of suicide ideation at some point over the lifetime, 3.9% report having made a suicide plan, and 4.6% report having attempted suicide. Among attempters, about 50% report having made a “serious” attempt. The percentages are higher for high school students asked about suicidal ideation and behavior over the preceding year: 16% report having seriously considered attempting suicide, 13% report having made a suicide plan, and 8.4% report having made an attempt during the prior 12 months (CDC, YRBS 2005). These numbers are even higher when a psychiatric disorder is present.
Often there is a transition that takes place along the continuum from ideation to plan to attempts. 34 % of individuals who think about suicide report transitioning from seriously thinking about suicide to making a plan, and 72% of planners move from a plan to an attempt. Among those who make attempts, 60% of planned attempts occur within the first year of ideation onset and 90% of unplanned attempts (which probably represent impulsive self-injurious behaviors) occur within this time period (Kessler, et al., 1999). These findings illustrate the importance of eliciting and exploring suicidal ideation and give credence to its role in initiating and fueling the suicidal process.
LOOK FOR THE WARNING SIGNS
What are warning signs and why are they important?
There are a number of known suicide risk factors. Nevertheless, these risk factors are not necessarily closely related in time to the onset of suicidal behaviors – nor does any risk factor alone increase or decrease risk. Population-based research suggests that the risk for suicide increases with an increase in the number of risk factors present, such that when more risk factors are present at any one time the more likely that they indicate an increased risk for suicidal behaviors at that time.
A recent review of the world’s literature has identified a number of warning signs that empirically have been shown to be temporally related to the acute onset of suicidal behaviors (e.g., within hours to a few days). These signs should warn you of ACUTE risk for the expression of suicidal behaviors, especially in those individuals with other risk factors (Rudd, et al., 2006). Three of these warning signs carry the highest likelihood of short-term onset of suicidal behaviors and require immediate attention, evaluation, referral, or consideration of hospitalization.
THE FIRST THREE WARNING SIGNS ARE:
- Threatening to hurt or kill self
- Looking for ways to kill self; seeking access to pills, weapons or other means
- Talking or writing about death, dying or suicide
The remaining list of warning signs should alert you that a mental health evaluation needs to be conducted in the VERY near future and that precautions need to be put into place IMMEDIATELY to ensure the safety, stability and security of the individual.
- Rage, anger, seeking revenge
- Acting reckless or engaging in risky activities, seemingly without thinking
- Feeling trapped – like there’s no way out
- Increasing alcohol or drug abuse
- Withdrawing from friends, family or society
- Anxiety, agitation, unable to sleep or sleeping all the time
- Dramatic changes in mood
- No reason for living, no sense of purpose in life
Other behaviors that may be associated with increased short-term risk for suicide are when the patient makes arrangements to divest responsibility for dependent others (children, pets, elders), or making other preparations such as updating wills, making financial arrangements for paying bills, saying goodbye to loved ones, etc.
SPECIFIC FACTORS THAT MAY INCREASE OR DECREASE RISK FOR SUICIDE
Risk and protective factors:
Factors that may increase risk or factors that may decrease risk are those that have been found to be statistically related to the presence or absence of suicidal behaviors. They do not necessarily impart a causal relationship. Rather they serve as guidelines for you to weigh the relative risk of an individual engaging in suicidal behaviors within the context of the current clinical presentation and psychosocial setting. Individuals differ in the degree to which risk and protective factors affect their propensity for engaging in suicidal behaviors. Within an individual, the contribution of each risk and protective factor to their suicidality will vary over the course of their lives.
No one risk factor, or set of risk factors, necessarily conveys increased suicidal risk. Nor does one protective factor, or set of protective factors, insure protection against engagement in suicidal behaviors. Furthermore, because of their different statistical correlations with suicidal behaviors, these factors are not equal and one cannot “balance” one set of factors against another in order to derive a sum total score of relative suicidal risk. Some risk factors are immutable (e.g., age, gender, race/ethnicity), while others are more situation-specific (e.g., loss of housing, exacerbation of pain in a chronic condition, and onset or exacerbation of psychiatric symptoms).
Ideally, with the elucidation and knowledge of an individual’s risk and protective factors as a backdrop, you will inquire about the individual’s reasons for living and reasons for dying to better evaluate current risk for suicide.
Factors that may increase a person’s risk for suicide include:
- Current ideation, intent, plan, access to means
- Previous suicide attempt or attempts
- Alcohol / Substance abuse
- Current or previous history of psychiatric diagnosis
- Impulsivity and poor self control
- Hopelessness – presence, duration, severity
- Recent losses – physical, financial, personal
- Recent discharge from an inpatient psychiatric unit
- Family history of suicide
- History of abuse (physical, sexual or emotional)
- Co-morbid health problems, especially a newly diagnosed problem or worsening symptoms
- Age, gender, race (elderly or young adult, unmarried, white, male, living alone)
- Same- sex sexual orientation
Factors that may decrease the risk for suicide are also called protective factors. These include:
- Positive social support
- Sense of responsibility to family
- Children in the home, pregnancy
- Life satisfaction
- Reality testing ability
- Positive coping skills
- Positive problem-solving skills
- Positive therapeutic relationship
ASK THE QUESTIONS
Asking questions about suicidal ideation, intent, plan, and attempts is not easy. Sometimes the individual will provide the opening to ask about suicide, but usually the topic does not readily flow from the presenting complaint and gathering of history related to the present illness. This can be particularly true in medical as opposed to behavioral health type settings. Nevertheless it is important to ask a screening set of questions whenever the clinical situation or presentation warrants it. The key is to set the stage for the questions and to signal to the individual that they are naturally part of the overall assessment of the current problem. A great deal depends upon your familiarity with the key screening questions and the ease and comfortableness he/she has with the topic and the asking of the questions. Introductory statements that lead into the questions pave the way to ensuring an informative and smooth dialogue and reassure the individual that you are prepared for and interested in the answers.
I appreciate how difficult this problem must be for you at this time. Some people with similar problems/symptoms have expressed that they have thought about ending their life. I wonder if you have had similar thoughts?
Are you feeling hopeless about the present or future?
If yes ask…..
Have you had thoughts about taking your life?
If yes ask….
When did you have these thoughts and do you have a plan to take your life?
Have you ever had a suicide attempt?
It is worth keeping in mind that suicidality can be understood as an attempt by the individual to solve a problem, one that they find overwhelming. It can be much easier for you to be nonjudgmental when s/he keeps this perspective in mind. You can work with Professionals in this area that can help find solutions to these problems.
Why is it important to ask about a history of attempts?
Most people who attempt suicide do not attempt again. However, about 16% repeat within one year and 21% repeat within 1-4 years. (Owens et al., 2002: Beautrais, 2003). The majority of repeat attempters will use more lethal means on subsequent attempts – increasing the likelihood of increased morbidity or mortality. Approximately 2% of attempters die by suicide within 1 year of their attempt. The history of a prior suicide attempt is the best known predictor for future suicidal behaviors, including death by suicide. Approximately 8-10% of attempters will eventually die by suicide.
Why is it important to ask about feeling hopeless?
Hopelessness – about the present and the future – has been found to be a very strong predictor of suicidal ideation and self-destructive behaviors. Associated with hopelessness are feelings of helplessness, worthlessness, and despair. Although often found in depressed patients, these affective states can be present in many disorders – both psychiatric and physical. If present it is important to explore these feelings with the individual to better assess for the development or expression of suicidal behaviors.
Why is it important to ask about ideation?
In most cases, suicidal ideation is believed to precede the onset of suicidal planning and action. Suicidal ideation can be associated with a desire or wish to die (intent) and a reason or rationale for wanting to die (motivation). Hence, it is essential to explore the presence or absence of ideation – currently, in the recent past, and concurrent with any change in physical health or other major psychosocial life stress.
Many individuals will initially deny the presence of suicidal ideation for a variety of reasons including: 1. the stigma that is associated with acknowledging symptoms of a mental disorder; 2. fear of being ridiculed, maligned and/or being judged negatively by yourself; 3. loss of autonomy and control over the situation; and 4. fear that you might overreact and hospitalize the individual involuntarily.
Even if denied, certain observable cues (affective and behavioral) should prompt you to remain alert to the possible presence of suicidal ideation. Some signs and symptoms include: profound social withdrawal, irrational thinking, paranoia, global insomnia, depressed affect, agitation, anxiety, irritability, despair, shame, humiliation, disgrace, anger and rage. You may find an apparent disparity between the current observable condition (what is seen and felt by the individual) and a denial of suicidal thinking on the part of the individual. This will be a good indicator of the need still to seek professional advice regarding the situation.
Asking about suicidal ideation and intent does not increase the likelihood of someone thinking about suicide for the first time or engaging in such behaviors. In fact, most patients report a sense of relief and support when a caring, concerned caregiver non-judgmentally expresses interest in exploring and understanding the individual’s current psychological pain and distress that leads them to consider suicide or other self-injurious behaviors.
All suicidal ideations and suicidal threats need to be taken seriously.
Why is it important to ask about timing of ideation and presence of a plan?
Although a minority of individuals are chronically suicidal, most people become suicidal in response to negative life events or psychosocial stressors that overwhelm their capacity to cope and maintain control, especially in the presence of a psychiatric disorder. Hence it is important to understand what elicits suicidal thoughts and the context of these thoughts. Knowing how much time has been spent thinking about suicide alerts you to its role and influence in the daily life of the individual. Knowing what makes things better and what makes things worse regarding the onset, intensity, duration and frequency of suicidal thoughts and feelings assists the Professional in developing a treatment plan. Also knowing what situations in the future might engender the return of suicidal thoughts helps you and the Professional, along with the individual to agree upon a safety plan and techniques to avoid or manage such situations.
The presence of a suicide plan set out by the Professional indicates that the individual has some intent to die and has begun preparing to die. It is important to know the possibilities and potential for implementation of the plan, the likelihood of being rescued if the plan is undertaken, and the relative lethality of the plan.
Although some research suggests a relationship between the degree of suicidal intent and the lethality of the means, you should not dismiss the presence of suicidal planning even if the method chosen does not appear to be necessarily lethal (Brown, et al., 2004). It is also important to know whether the individual has begun to enact the plan, by engaging in such behaviors as rehearsals, hoarding of medications, gaining access to firearms or other lethal means, writing a suicide note, etc.
RESPONDING TO SUICIDE RISK
What is a crisis?
A crisis is when the individual’s usual and customary coping skills are no longer adequate to address a perceived stressful situation. Often such situations are novel and unexpected. A crisis occurs when unusual stress, brought on by unexpected and disruptive events, render an individual physically and emotionally disabled – because their usual coping mechanisms and past behavioral repertoire prove ineffective. A crisis overrides an individual’s normal psychological and biological coping mechanisms – moving the individual towards maladaptive behaviors. A crisis limits one’s ability to utilize more cognitively sophisticated problem-solving skills and conflict resolution skills. Crises are, by definition, time-limited. However, every crisis is a high risk situation.
Crisis intervention and management:
In a crisis, seek Professional help immediately and if necessary call 911 or the Suicide Prevention Lifeline number 1-800-273-8255. The goals of crisis intervention are to lessen the intensity, duration, and presence of a crisis that is perceived as overwhelming and that can lead to self-injurious behaviors. This is accomplished along with the Professional by shifting the focus from an emergency that is life-threatening to a plan of action that is understandable and perceived as doable. The goal is to protect the individual from self-harm. In the process, it is critical for the Professional with your help to identify and discuss the underlying disorder, dysfunction, and/or event that precipitated the crisis. Involving family, partners, friends, and social support networks may be advised by the Professional.
The objectives of the Professional are to assist the individual in regaining mastery, control, and predictability. This is accomplished by reinforcing healthy coping skills and substituting more effective skills and responses for less effective skills and dysfunctional responses. The goal of crisis management is to re-establish equilibrium and restore the individual to a state of feeling in control in a safe, secure, and stable environment. Under certain circumstances this might require hospitalization. Professionals are especially equipped and trained to manage the crisis and make the call. Do not attempt to manage the crisis on your own.
The techniques the professional may employ or offer include removing or securing any lethal methods of self-harm, decreasing isolation, decreasing anxiety and agitation, and engaging the individual in a safety plan (crisis management or contingency planning). It also involves a simple set of reminders for the individual to utilize the crisis safety plan and skills agreed upon by you, the professional, and the individual.
Referrals for mental health assessment and follow-up:
Any reference to suicidal ideation, intent, or plans mandates a mental health assessment. If the individual is deemed by a professional not to be at immediate risk for engaging in self-destructive behaviors, then the Professional needs to collaboratively develop a follow-up and follow-through plan of action. This activity best involves the individual along with significant others such as family members, friends, spouse, partner, close friends, etc.).
Here are some ways to be helpful to someone who is threatening suicide or engaging in suicidal behaviors:
- SEEK PROFESSIONAL HELP 1-800-273-8255
- Be aware – learn the risk factors and warning signs for suicide and where to get help
- Be direct – talk openly and matter-of-factly about suicide, what you have observed, and what your concerns are regarding his/her well-being
- Be willing to listen – allow expression of feelings, accept the feelings, and be patient
- Be non-judgmental – don’t debate whether suicide is right or wrong or whether the person’s feelings are good or bad; don’t give a lecture on the value of life
- Be available – show interest, understanding, and support
- Don’t dare him/her to engage in suicidal behaviors.
- Don’t act shocked
- Don’t ask “why”
- Don’t be sworn to secrecy
- Offer hope that alternatives are available – but don’t offer reassurances that any one alternative will turn things around in the near future.
- Take action – remove lethal means of self-harm such as pills, ropes, firearms, and alcohol or other drugs
- Get help from others with more experience and expertise
- Be actively involved in encouraging the person to see a mental health professional as soon as possible and ensure that an appointment is made.
Individuals contemplating suicide often don’t believe that they can be helped, so you may have to be active and persistent in helping them to get the help they need. And, after helping an individual during a mental health crisis, be aware of how you may have been affected emotionally and seek the necessary support for yourself.
MYTHS ABOUT SUICIDE
There are many myths about suicide and suicidal behavior that have been passed down through the generations that some people still believe today and may have actually been taught. Examples of these myths are:
- Myth: Asking about suicide would plant the idea in my patient’s head.
- Reality: Asking how your patient feels doesn’t create suicidal thoughts any more than asking how your patient’s chest feels would cause angina.
- Myth: There are talkers and there are doers.
- Reality: Most people who die by suicide have communicated some intent. Someone who talks about suicide gives the physician an opportunity to intervene before suicidal behaviors occur.
- Myth: If somebody really wants to die by suicide, there is nothing you can do about it.
- Reality: Most suicidal ideas are associated with the presence of underlying treatable disorders. Providing a safe environment for treatment of the underlying cause can save lives. The acute risk for suicide is often time-limited. If you can help the person survive the immediate crisis and the strong intent to die by suicide, then you will have gone a long way towards promoting a positive outcome.
- Myth: He/she really wouldn’t kill themselves since ______.
- he just made plans for a vacation
- she has young children at home
- he signed a No Harm Contract
- he knows how dearly his family loves him
- Reality: The intent to die can override any rational thinking. In the presence of suicidal ideation or intent, you should not be dissuaded from thinking that the patient is capable of acting on these thoughts and feelings. No Harm or No Suicide contracts have been shown to be essentially worthless from a clinical and management perspective. The anecdotal reports of their usefulness can all be explained by the strength of the alliance with the care provider that results from such a collaborative exchange, not from the specifics of the contract itself.
- Myth: Multiple and apparently manipulative self-injurious behaviors mean that the patient is just trying to get attention and are not really suicidal.
- Reality: Suicide “gestures” require thoughtful assessment and treatment. Multiple prior suicide attempts increase the likelihood of eventually dying by suicide. The task is to empathically and non-judgmentally engage the individual in understanding the behavior and finding safer and healthier ways of asking for help. Seek Professional help in this.
SUICIDE INFORMATION WEB SITES:
American Association of Suicidology: http://www.suicidology.org
American Foundation of Suicide Prevention: http://www.afsp.org
Suicide Prevention Action Network (SPAN): http://www.spanusa.org
Suicide Prevention Resource Center: http://www.sprc.org
US Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA): http://www.samhsa.gov
American Psychiatric Association. (2004). Practice Guidelines for the Assessment and Treatment of Patients with Suicidal Behaviors. In: Practice Guidelines for the Treatment of Psychiatric Disorders Compendium, 2nd edition. pp. 835-1027. VA: Arlington.
Beautrais, A.L. (2003). Subsequent mortality in medically serious suicide attempts: A 5 year follow-up. Australian and New Zealand Journal of Psychiatry; 37: 595-599.
Brown, G.K., Henriques, G.R., Sosdjan, D., & Beck, A.T. (2004). Suicide intent and accurate expectations of lethality: Predictors of medical lethality of suicide attempts. Journal of Consulting and Clinical Psychology; 72, 1170-1174.
CDC. Youth Risk Behavior Survey, (2005). Morbidity and Mortality Weekly, Surveillance Summaries, Volume 55, No. SS-5 (June 6, 2006), 1-108.
Kessler, R.C., Borges, B., & Walters, E.E. (1999). Prevalence of and risk factors for lifetime suicide attempts in the National Comorbidity Survey. Archives of General Psychiatry; 56, 617-626.
Owens, D., Horrocks, J., & House, A. (2002). Fatal and non-fatal repetition of self-harm. Systematic review. British Journal of Psychiatry; 181, 193-199.
Rudd M.D., Berman, A.L., Joiner, T.E., Nock, M.K., Silverman, M.M., Mandrusiak, M., Van Orden, K., & Witte, T. (2006) Warning signs for suicide: Theory, research and clinical applications. Suicide and Life Threatening Behavior; 36, 255-62.
Silver, J.M., Kramer, R., Greenwald, S., Weissman, M. (2001). The association between head injuries and psychiatric disorders: findings from the New Haven NIMH Epidemiological Catchment Area Study. Brain Injury, 15, 11, 935-945.
Simpson, G. & Tate, R. (2002). Suicidality after traumatic brain injury: demographic, injury and clinical correlates. Psychological Medicine, 32, 687-697.
Teasdale, T.W. & Engberg, A.W. (2001). Suicide after traumatic brain injury: A population study. The Journal of Neurology, Neurosurgery, and Psychiatry, 71 (4), 436-440.
Berman, A.L., Jobes, D.A. & Silverman, M.M. (2006) Adolescent Suicide: Assessment and Intervention. NY: Guilford Publications.
Brown, G., Ten Have, T., Henriques, G., Xie, S., Hollander, J. & Beck, A. (2005). Cognitive Therapy for the Prevention of Suicide Attempts, A Randomized Controlled Trial. JAMA, 294(5). 563-570.
Institute of Medicine. (2002) Reducing Suicide: A National Imperative. Washington DC; The National Academies Press.
Jacobs, D.G. (Ed.) (1999). The Harvard Medical School Guide to Suicide Assessment and Intervention. San Francisco, CA: Jossey-Bass.
Jacobs, D. & Brewer, M (2004). American Psychiatric Association practice guidelines provides recommendations for assessing and treating patient with suicidal behaviors. Psychiatric Annals, 34 (5), 373-380.
Jobes, David A., (2006) Managing Suicidal Risk: A Collaborative Approach. New York, NY: The Guilford Press.
Joiner, T. (2005). Why People Die By Suicide. Cambridge, MA: Harvard University Press.
Maris, R. W., Berman, A.L., & Silverman, M.M. (2000) Comprehensive Textbook
of Suicidology. New York, NY: The Guilford Press.
Rudd, M.D. (2006) The Assessment and Management of Suicidality. Sarasota, FL: Professional Resource Press.
Shea, S. (2002). The Practical Art of Suicide Assessment: A Guide for Mental Health Professional and Substance Abuse Counselors. Hoboken, NJ: John Wiley & Sons.
Shea, S. (2004) The Delicate Art of Eliciting Suicidal Ideation. Psychiatric Annals, 34 (5), 374-400.
Shneidman, E.S. (2004). Autopsy of a Suicidal Mind. London, Oxford University Press.
Shneidman, E.S. (1996). The Suicidal Mind. London, Oxford University Press.
Simon, R.I. (2004). Assessing and Managing Suicide Risk: Guidelines for Clinically Based Risk Management. Washington DC: American Psychiatric Publishing, Inc.
Simon, R. & Hales, R. (2006). Textbook of Suicide Assessment and Management. Arlington, VA: American Psychiatric Publishing, Inc.
Neither I nor any person within my care on Mendability is at risk for suicide
SENSORY ENRICHMENT THERAPY MODALITY AGREEMENT
THIS SENSORY ENRICHMENT THERAPY MODALITY AGREEMENT (“Agreement“) is entered into effective as of the date of digital signature of acceptance by Therapist (“Effective Date“), by and between Mendability LLC., a Utah Limited Liability Corporation, located at 915 S 500 E, American Fork UT, 84003 (“Company” or “Mendability“) and the undersigned (“Therapist”). The Company and Therapist may collectively be referred to hereafter as the “Parties” or each, individually, as a “Party“.
WHEREAS, Company has made a substantial investment with respect to research and development of proprietary protocols, methods, processes and modalities for treatment of individuals with disorders related to ASD and other neurological disorders and conditions, which treatment protocols are identified with more specificity below and include, among others, the Sensory Enrichment Therapy that is proprietary to the Company and which is used by speech-language clinicians and physical and occupational therapists pursuant to the terms of licenses granted by Company (“Therapy Modality“);
WHEREAS, Company has maintained certain information and materials related to the Therapy Modality in confidence and has taken reasonable measures to protect such confidential information as trade secrets;
WHEREAS, Company has agreed to provide Therapist with instruction, education, teaching and training in connection with the Workshops (defined below) and other proprietary programs (collectively, “Training“) during which Company will disclose to Therapist the Therapy Modality and other valuable confidential information, trade secrets and intellectual property;
WHEREAS, Company has agreed to grant to Therapist, during the term of this Agreement, a nonexclusive, non-transferrable, revocable, limited license to use Company’s confidential information and other proprietary intellectual property, including without limitation patents, trademarks, service marks, copyrights and trade secrets, subject to the terms and conditions of this Agreement;
WHEREAS, in return for such disclosure and license grant by Company, Therapist has agreed to abide by the terms and conditions of this Agreement, which among other things permits Therapist to use Company’s confidential information and intellectual property only during the term of this Agreement and only as expressly permitted herein, and Therapist expressly acknowledges and agrees that using any modified form of the Therapy Modality is expressly prohibited because doing so may cause harm to patients and may tarnish or dilute Company’s goodwill and reputation;
WHEREAS, Therapist has also agreed that following the termination of this Agreement, Therapist may not use or disclose any of Company’s confidential information or intellectual property for any purpose, which restrictions survive and continue in full force and effect indefinitely following termination of this Agreement;
NOW, THEREFORE, in consideration of the covenants contained herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
- Definitions. All capitalized terms used in this Agreement shall have the defined meanings ascribed to them herein, and cognate terms have, respectively, corresponding meanings.
- License Grant.
- License. During the Term and subject to the Pre-License Conditions set forth in Section 3 below and the License Restrictions set forth in Section 5 below, Company hereby grants to Therapist a nonexclusive, non-transferrable, revocable, limited license (the “License”) to use the Company Confidential Information, for the sole purpose of providing patients with those services expressly prescribed in the Therapy Modality Materials, as applicable (“Therapy Services“); provided, however, that the parties hereto acknowledge that a condition precedent to the use of the License is that Therapist have at least one (1) active subscription in good standing and that each patient served by Therapist have an active subscription in good standing on the Mendability therapy application website. If at any time Therapist fails to maintain at least one (1) active subscription in good standing and fails to maintain, for each patient served by Therapist, an active subscription in good standing on the Mendability therapy application website, the License shall immediately and automatically lapse and this Agreement shall thereafter be terminated. The License shall specifically include (without limitation) the right to use the “Therapy Modality Patents”, the “Therapy Modality Trademarks”, the “Therapy Modality Copyrights” and the “Therapy Modality Materials” – all as defined below. All rights not expressly included in the foregoing License are expressly reserved by Company.
- Definition of Company Confidential Information. The term “Company Confidential Information” means any and all intellectual property that is used or useful in the business of Company, including without limitation all of the following, together with all worldwide common law and statutory rights in, arising out of or associated therewith: (i) United States and foreign patents and patent applications, re-issues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part, including U.S. Patents currently applied for (collectively, “Therapy Modality Patents“); (ii) registered and common law trademarks, service marks, trade names, fictitious business names, domain names, logos, slogans, trade dress, product names, protocol names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, and all registrations, applications and renewals related to the foregoing, including without limitation “Sensory Enrichment Therapy” and “Mendability” (collectively, “Therapy Modality Trademarks“); (iii) original works of authorship of any kind, whether or not published, and all copyrights, copyright registrations and copyright applications, and any renewals thereof, including without limitation any copyrights related to the Therapy Modality Materials, (collectively, “Therapy Modality Copyrights“); (iv) trade secrets, know-how, ideas, Inventions and other protocols, methods, processes, modalities and Confidential Information; (v) the Mendability software, Therapy Modality exercises, Mendability questionnaires, slides, training materials, manuals, guides, specifications, documents and tangible materials related to the Therapy Modality that collectively comprise the “Therapy Modality Materials” and (v) all other intellectual property rights, whether registered or unregistered and including all registrations and applications thereof, and renewals or extensions thereof, and all similar or equivalent rights or forms of protection in any part of the world. The Therapy Modality Trademarks shall be and remain subject to Company’s Trademark Guidelines (such Trademark Guidelines can be found on Company’s website at https://www.mendability.com/pro/guidelines), which guidelines may be updated by Company from time to time, in Company’s absolute discretion.For avoidance of doubt, during the Term, Therapist may create materials for use with the Therapy Services that bear the Therapy Modality Trademarks, including without limitation brochures, pamphlets, web pages, business cards, and stationery (“Approved Therapist Materials
“); provided, however, that Therapist shall submit samples of any such materials to Company for Company’s review and approval, which shall not be unreasonably withheld, before such materials are made available to any third party.
- Improvements. All improvements to the Company Confidential Information (“Improvements“) shall be the sole property of Company, regardless of the identity of the maker of the Improvements.
- No Other Rights. The License granted hereunder shall not be construed to confer any rights upon Therapist by implication, estoppel or otherwise.
- Sublicenses. Therapist shall have no right to grant sublicenses of its rights under the License without the consent of Company.
- Pre-License Conditions. Therapist shall maintain, at all times during the Term, either a Temporary Provisional Certification or a Sensory Enrichment Therapy Practitioner Certification, both as defined below. If Therapist fails to maintain at least one such certification at any time during the Term, the License shall expire and this Agreement shall be terminated.
- Temporary Provisional Certification. A “Temporary Provisional Certification” shall be earned in the following manner:
- Workshop Attendance. Therapist shall attend a complete Therapy Modality certification training workshop as required by the Company (“Workshop“) (an up-to-date list of Workshop dates is identified on Company’s website at https://www.mendability.com/sensory-enrichment-therapy-certification/). In connection with the Training, the Therapist will be provided with access to those documents and materials that comprise the “Therapy Modality Materials”, as defined below.
- Training Exams. Therapist shall pass the Therapy Modality certification exam required by Company (which exam is identified on Company’s website at https://www.mendability.com/sensory-enrichment-therapy-certification/); and
- Payment of Fees. Therapist shall pay all applicable Therapy Modality certification fees at the time of registration at the fee advertised at the time of registration (which fees are identified on Company’s website at https://www.mendability.com/sensory-enrichment-therapy-certification/).
As soon as Therapist has attended the Workshop as required under Section 3(a)(i), has passed the Therapy Modality certification exam described in Section 3(a)(ii) and has paid all applicable fees set forth in Section 3(a)(iii), the Company shall provide a written certificate acknowledging that Therapist has been certified by Company to provide the Therapy Modality under a Temporary Provisional Certification (the “Temporary Certification“), which will allow Therapist to use the License, so long as such Temporary Provisional Certification has not lapsed or this Agreement has not been otherwise terminated.
- Sensory Enrichment Therapy Practitioner Certification. A “Sensory Enrichment Therapy Practitioner Certification” shall be earned in the following manner:
- Receipt of Temporary Provisional Certification. Therapist shall have an active valid Temporary Provisional Certification (as outlined in Section 3.a. above).
- Practicum. Therapist shall comply with all of the practicum requirements before the end of the practicum period (“Practicum Period“) (the practicum requirements and practicum period are identified on the Company’s website at https://www.mendability.com/sensory-enrichment-therapy-certification/).
Once Therapist has evidenced possession of an active Temporary Provisional Certification and has passed the practicum requirements, Company shall provide a written certificate acknowledging that Therapist has been certified by Company to provide the Therapy Modality with title of “Sensory Enrichment Therapy Practitioner” (the “Certification“) The Certification will allow Therapist to continue use of the License until this Agreement is terminated.
- Renewal and Revocation. Therapist acknowledges and agrees that the Temporary Certification shall automatically expire on the date printed on the Temporary Certification. Therapist further acknowledges and agrees Certification by Company shall automatically expire after two (2) years and that Therapist will be required to comply with the requirements published by Company in order to renew such Certification (hereafter, a “Certificate Renewal”), which requirements may include, without limitation, completion of any required renewal certification workshops, passage of any applicable renewal exams, and payment of any applicable renewal fees including Workshop fees and recurring subscription fees. Company may revoke Therapist’s Certification at any time in Company’s reasonable discretion by providing written notice thereof to Therapist at which time this Agreement shall terminate and the license granted to Therapist herein shall be revoked.
- License Restrictions. Notwithstanding anything to the contrary in this Agreement, the License shall not include any of the following: (i) the deliverance of the Therapy Services, or disclosure of any part of the Therapy Services, via any means other than during support of a current client, which prohibition includes, without limitation, posting any audio or video materials comprising Therapy Services on a website, disclosing the Therapy Services or any part thereof to more than one person at a time or to anyone other than a patient or the patient’s caregiver, or providing the online therapy services except as expressly authorized by Company unless Therapist requests and obtains in each case, Company’s prior written consent, which may be withheld in Company’s absolute discretion; (ii) the provision of instruction, teaching or training to any other person using any Company Confidential Information, which provision includes, without limitation, disclosing any Confidential Information related to the Therapy Services to anyone other than as expressly permitted in Section 4(d); (iii) the capture (through photograph, video or audio record, or otherwise) of any audio or image of any Training, Workshops, Therapy Modality, Therapy Modality Materials, or any Therapy Services, including without limitation by using video cameras, cellular telephones, tape recorders, or other technologies capable of capturing audio, video, images, or text; (iv) the violation of the Company’s policy on reproduction or production of videos or other media, copy or reproduce any of the Therapy Modality Materials or making of any of the Therapy Modality Materials accessible to any person except as expressly permitted pursuant to Section 6(d); (v) the modification, reverse engineering, or creation of any derivative works based on any Company Confidential Information, or any part thereof, or use or disclose of any modified form of any Company Confidential Information, which prohibition includes, among other things, creating, disclosing or using any modified form of Therapy Modality in connection with Therapist’s provision of Therapy Services, unless Therapist requests and obtains, in each case, Company’s prior written consent, which may be withheld in Company’s absolute discretion; (vi) the use of the Therapy Modality Trademarks or any part thereof, in any form, for any goods or services except as expressly permitted hereunder, which prohibition includes, without limitation, any use of any Therapy Modality Materials on or in connection with information delivered via webcam, telephone, video conference, software program, online video or streaming, or via any alternative or other technical means, whether now known or hereafter devised anything, other than use on the Approved Therapist Materials and Approved Informational Materials (defined below); (vii) the right to represent that the Company Confidential Information, or any part thereof, is owned by Therapist or any third party; (viii) the right to remove any proprietary notices, labels, marks or identifying information of any kind on the Therapy Modality Materials or any other documents or materials that Company provides or makes available to Therapist; and (ix) the use of any Company Confidential Information, or any part thereof, for any purpose other than in accordance with the terms and conditions of this Agreement; (x) the right to use the license if Therapist has violated any law, statute, code, regulation, rule, ordinance, order, judgment or decree of any United States or foreign country, state, province, municipality, county or other government court, agency, instrumentality or jurisdiction, including, without limitation, the Health Insurance Portability and Accountability Act of 1996, as amended from time to time, and the regulation promulgated thereunder, including 45 C.F.R. Parts 160 and 164, as amended or supplemented from time to time (collectively, “Laws“).
- Confidentiality and Nondisclosure of Company Confidential Information.
- Ownership of Company Confidential Information. Therapist acknowledges and agrees that Company is the owner of all of the Company Confidential Information, including, without limitation, the Therapy Modality, business and marketing plans and other information regarding operation of Company; financial information, fee structure, compensation and other related information; data, databases, documents, files, electronically recorded information, books, papers, records, specifications, compilations of information and other related information; computer programs, software, spreadsheets, programming, software specifications, and other information and materials relating to computer software; equipment, computing systems, hardware, devices, apparatus, technology and systems integration and technical information; research and development information, trade secrets, know-how, methods, studies, and other Inventions; other information and materials disclosed in confidence to Therapist, directly or indirectly, either orally or in writing, by Company; and any derivative works, improvements or modifications to any of the foregoing, and any other information or materials created, in whole or in part, by using any of the foregoing. Therapist acknowledges and agrees that information need not be labelled as “confidential” to qualify as Confidential Information.
- Exclusions. Company Confidential Information does not include information that Therapist can demonstrate: (a) is now or hereafter becomes, through no act or failure to act on the part of Therapist, generally known or widely available to the public; (b) was known by Therapist prior to receiving such information or materials from Company; or (c) is independently developed by Therapist without using, incorporating, referencing, recreating or relying upon any of the Confidential Information. Notwithstanding the foregoing, Therapist acknowledges and agrees that Company’s compilation of information, as disclosed to Therapist, constitutes confidential information under this Agreement even though portions of such information may be individually disclosed or found in the public domain.
- Nondisclosure and Nonuse of Company Confidential Information. During the Term of this Agreement, Therapist will have access to and be provided with Company Confidential Information. Therapist represents, warrants and agrees that: (i) Therapist will not use any such Company Confidential Information during the Term of this Agreement, except as otherwise expressly permitted by the License; (ii) Therapist will not use any Company Confidential Information for any purpose following the termination of this Agreement, except only to the extent necessary to determine the scope of Therapy Services that were previously provided to a patient during the Term of this Agreement; and (iii) except as otherwise expressly provided in Section 6(d), Therapist will not at any time, either during or after the Term of this Agreement, disclose or make available to any third party, any Company Confidential Information, unless Therapist requests and obtains, in each case, Company’s prior written consent, which may be withheld in Company’s absolute discretion. Without limiting the generality of the foregoing, Therapist may not post on the Internet or otherwise publicly disclose any videos or other materials related to Therapy Modality that would enable or assist in the performance of any of Company’s proprietary protocols or exercises. Therapist agrees to provide written notice to the Company immediately of any actual or suspected disclosure to or use by any third party of any Company Confidential Information of which Therapist gains knowledge while engaged by Company.
- Permitted Disclosure. Notwithstanding Section 6(c), during the Term of this Agreement, Therapist may disclose Approved Informational Materials to doctors, clinicians, medical professionals, researchers, patients and prospective patients only as expressly permitted in writing by Company. For purposes of this Agreement, “Approved Informational Materials” means any Therapy Modality Materials that Company has expressly authorized in writing for disclosure pursuant to this Section, including Therapy Modality and the Company marketing brochures that provide information about Therapy Modality and the Company to individuals and caregivers of individuals with ASD and other neurological conditions. Subject to the other restrictions set forth herein, Therapist may also disclose individual portions of the Company Confidential Information (in addition to the Approved Informational Materials) to the extent that such disclosure is reasonably necessary to render the Therapy Services. In addition, Therapists employed as faculty and clinical supervisors of accredited higher education institutions providing formal (e.g., ASHA approved) degree programs related to speech or voice therapy and physical/occupational therapy may disclose Approved Information Materials in connection with the Therapist’s formal academic capacities. Approved Informational Materials may be copied and provided to such patients, prospective patients, or higher education students, as applicable; provided, however, that all such documents must bear the following copyright notice: “Copyright 2016 Mendability LLC. All rights reserved.” If the year of creation or first publication of the work, whichever is earlier, is different from 2016, then Therapist must substitute the applicable year in the notice. Therapist may not create, use or disclose any modified version or derivative works of the Approved Informational Materials, nor may Therapist disclose any Approved Information Materials or other the Company Confidential Information to any third party except as expressly permitted by this Section. If Therapist has a website that advertises therapy services, Therapist shall disclose on said website the certification that is held as “Sensory Enrichment Therapy (Therapy Modality) Certified”.
- Ownership of Inventions and Improvements.
- Ownership of Inventions. Therapist agrees that all right, title, and interest in and to any and all original works of authorship, developments, concepts, improvements, designs, discoveries, inventions, ideas, trademarks or trade secrets, whether or not patentable or registrable under copyright or similar laws (collectively referred to as “Inventions“), which Therapist may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the Term of this Agreement shall be and are hereby assigned to the Company or its designee, except for any Inventions which: (1) Therapist developed entirely on its own time without using the Company’s equipment, supplies, facilities, or the Company Confidential Information; (2) are unrelated to the Company’s business; and (3) do not result from any Therapy Services performed pursuant to this Agreement.
- Ownership of Improvements. Therapist acknowledges and agrees that, as between Therapist and Company, Company shall be the sole owner of all of the “Improvements” (as defined in Section 2(c) above). This Agreement grants a license only and transfers to Therapist no ownership interest in any Company Confidential Information nor any Improvements. Therapist shall not take any action to jeopardize, limit or interfere in any manner with Company’s ownership of and rights with respect to the Company Confidential Information. Therapist acknowledges that all goodwill arising out of the use of the Therapy Modality Trademarks will inure to the exclusive benefit of the Company. All rights, other than the license rights expressly granted in Section 2, are reserved.
- No Warranty. Company makes no warranty with respect to the Company Confidential Information, which is provided “as is” and with all faults. Therapist acknowledges and agrees that Company does not have control over Therapist’s provision of Therapy Services or use of Company Confidential Information, and Company does not warrant the results that may be obtained through the Therapy Services or through use of Company Confidential Information. Without limiting the generality of the foregoing, Therapist acknowledges and agrees that it is solely responsible for evaluating and treating Therapist’s patients and that Company will have no involvement or responsibility with respect to Therapist’s delivery of Therapy Services. Therapist assumes all risks and responsibility for its provision of Therapy Services and use of Company Confidential Information. To the fullest extent permitted by law, Company makes and Therapist receives no representations or warranties of any kind, whether express, implied, statutory or allegedly extended in any communication with Therapist. The Company Confidential Information is intended to be used by trained professionals only and is not a substitute for professional judgment. Therapist acknowledges and agrees that Company cannot anticipate every medical circumstance or condition of an individual patient, and Therapist agrees that it shall notify each patient to that effect.
- Limitation of Liability. To the maximum extent permitted by applicable law, in no event will Company be liable for any damages, including lost profits, incidental, consequential, indirect or punitive damages arising out of or relating to this Agreement, the Therapy Services or use of the Company Confidential Information, however caused, and on any theory of liability, whether in contract, tort, indemnity or otherwise. This limitation will apply even if Company has been advised of the possibility of such damage.
- Indemnification. Therapist agrees to indemnify, defend and hold harmless the Company from and against all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including without limitation interest, penalties, attorneys’ fees and costs, that the Company may incur or suffer as a result of or related to any intentional acts, omissions, negligence, wilful misconduct and any breach or alleged breach or failure to perform any of the representations, warranties or obligations in this Agreement, including without limitation any allegations related to the Therapy Services provided or Company Confidential Information used by Therapist.
- Term and Termination.
- Term. This Agreement shall begin on the Effective Date and shall continue in effect for a period of exactly six (6) months unless terminated by either Party pursuant to Section 10(b) (the “Term”).
- Termination. Notwithstanding the foregoing, this Agreement may be terminated: (i) by mutual written agreement of the Parties; (ii) by either Party, at any time, by providing the other Party with written notice of termination, which termination shall become effective thirty (30) days after the date of such notice; (iii) by either Party if the other Party breaches this Agreement and fails to cure such breach within five (5) days after the date of notice specifying such breach; (iv) automatically if there is instituted by or against the other Party proceedings in bankruptcy or under insolvency Laws or receivership or dissolution, or if the other Party makes an assignment for the benefit of creditors or admits insolvency or becomes insolvent, in which case termination shall be effective upon such Party’s receipt of the termination notice; (v) automatically upon Therapist’s loss of Certification through expiration or revocation, violation of any Law (including any breach under Section 14 hereto) or breach of the license restrictions set forth in Section 5, in which case termination shall be effective immediately (in each case, the effective date of termination shall be referred to herein as the “Termination Date”). Upon any termination of this Agreement, the licenses granted in Section 2 shall automatically and immediately terminate.
- Survival. Upon any termination of this Agreement, Sections 2(c) and 2(e), along with Sections 5 through 11 and Section 14 shall survive and remain in full force and effect. Without limiting the generality of the foregoing, upon any termination of this Agreement, Therapist may not disclose any of Company’s Confidential Information, or create, disclose or use any derivative works or modified form of the Company Confidential Information.
- Injunctive Relief for Breach of Agreement. Therapist acknowledges and agrees that Therapist’s failure to perform any of Therapist’s covenants in Sections 5, 6, 7, 9 and 14 would cause irreparable injury to Company and cause damages to Company that would be difficult or impossible to ascertain or quantify. Accordingly, without limiting any remedies that may be available with respect to any breach of this Agreement, Therapist consents to the entry of an injunction to restrain any breach of Sections 5, 6, 7, 9 and 14 without any necessity to post any bond or provide any security in connection therewith.
- Dispute Resolution. If a dispute arises from or relates to this Agreement or the breach thereof, and if the dispute cannot be settled through direct discussions, the Parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, which mediation shall be scheduled within 30 days of any request to mediate by either Party. If the Parties do not resolve the dispute within 45 days of any such request to mediate, any dispute arising from or relating to this Agreement or breach thereof shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of any mediation or arbitration shall be Salt Lake City, Utah. If the Parties do not agree to an arbitrator within 10 days following the initiation of arbitration by either Party, each Party shall submit the name of an arbitrator affiliated with the American Arbitration Association offices in Salt Lake City, Utah, and the two named arbitrators shall appoint another arbitrator who shall solely preside over the arbitration proceeding. Either Party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either Party also may, without waiving any remedy under this Agreement, seek from any court in Salt Lake City, Utah having jurisdiction, any interim or provisional relief that is necessary to protect the rights or property of that Party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). Consistent with the expedited nature of arbitration, each Party will, upon the written request of the other Party, promptly provide the other with copies of documents relevant to the issues raised by any claim or counterclaim. Any dispute regarding discovery, or the relevance or scope thereof, shall be determined by the arbitrator, which determination shall be conclusive. All discovery shall be completed within 60 days following the appointment of the arbitrator. At the request of a Party, the arbitrator shall have the discretion to order examination by deposition of witnesses to the extent the arbitrator deems such additional discovery relevant and appropriate. Depositions shall be limited to a maximum of three per Party and shall be held within 30 days of the making of a request. Additional depositions may be scheduled only with the permission of the arbitrator, and for good cause shown. Each deposition shall be limited to a maximum of six hours duration. All objections are reserved for the arbitration hearing except for objections based on privilege and proprietary or confidential information. The prevailing Party shall be entitled to an award of reasonable costs and fees, which shall include, without limitation, all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as transcription, reporting, copying and telephone, court costs, expert and percipient witness fees, and attorneys’ fees.
- Infringement Actions.
- Therapist shall inform Company promptly in writing of any alleged infringement of the Company Confidential Information by a third party that Therapist becomes aware of and of any available evidence thereof.
- During the Term, Therapist shall have the right, but shall not be obligated, to prosecute at its own expense all infringements of the Intellectual Property if Therapist provides Company advance written notice of its intent to prosecute; provided, however, that such right to bring such an infringement action shall remain in effect only for so long as the License granted herein remains exclusive. Company hereby agrees that Therapist may include Company as a party plaintiff in any such suit, without expense to Company. Therapist shall indemnify Company against any order for costs that may be made against Company in such proceedings.
- In any case, Company shall have the right, but shall not be obligated, to prosecute at its own expense any infringement of the Company Confidential Information, and Company may, for such purposes, use the name of Therapist as party plaintiff. Company shall bear all costs and expenses of any such suit.
- In the event that a declaratory judgment action alleging invalidity or infringement of any part or all of the Company Confidential Information shall be brought against Company, Therapist, at its option, shall have the right, within ninety (90) days after commencement of such action, to intervene and take over the sole defense of the action at its own expense.
- In any infringement suit filed by Company to protect any of the Company Confidential Information, Therapist shall, at Company’s request and expense, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like.
- Additional Therapist Duties.
- Definitions. The following terms used in this Section 14 shall have the following meanings:
- The “Act” shall mean the Health Information Technology for Economic and Clinical Health Act.
- “Breach” as referenced in Section 13400(1)(A) of the Act.
- “Business Associate” shall generally have the same meaning as the term “Business Associate” at 45 CFR 160.103, and in reference to the party to this Agreement, shall mean Therapist.
- “Covered Entity” shall generally have the same meaning as the term “Covered Entity” at 45 CFR 160.103, and in reference to the party to this Agreement, shall mean the Company.
- “Designated Record Set” as referenced in 45 CFR §164.501.
- “Disclosure” as referenced in 45 CFR §160.103.
- “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
- “Minimum Necessary” as referenced in 45 CFR 164.502(b).
- “Person” as referenced in 45 CFR §160.103.
- “Protected Health Information” as referenced in 45 CFR §160.103.
- “Required By Law” as referenced in 45 CFR §164.103.
- “Secretary” shall mean the Secretary of the Federal Department of Health and Human Services or his/her designee.
- “Security Incident” as referenced in 45 CFR §164.304.
- “Subcontractor” as referenced in 45 CFR 160.103.
- “Unsecured Protected Health Information” as referenced in §13402(h) of the Act.
- “Use” as referenced in 45 CFR §160.103.
- Obligations and Activities of Business Associate. Business Associate agrees to:
- Not Use or Disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law;
- Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information, to prevent Use or Disclosure of Protected Health Information other than as provided for by the Agreement;
- Report to Covered Entity any Use or Disclosure of Protected Health Information not provided for by this Agreement or applicable law of which it becomes aware, including Breaches of Unsecured Protected Health Information as required at 45 CFR 164.410, and any Security Incident of which it becomes aware;
- In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any Subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of Business Associate agree to the same restrictions, conditions, and requirements that apply to Business Associate with respect to such information;
- Make available Protected Health Information in a Designated Record Set to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524;
- Make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526;
- Maintain and make available the information required to provide an accounting of Disclosures to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528;
- To the extent Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligation(s); and
- Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
- Permitted Uses and Disclosures by Business Associate. Subject to any restrictions or prohibitions set forth in the Act or any of the HIPAA Rules:
- Business Associate may only Use or Disclose Protected Health Information as necessary to perform the services set forth in this Agreement and only as Required By Law.
- Business Associate agrees to make Uses and Disclosures and requests for Protected Health Information consistent with Covered Entity’s Minimum Necessary policies and procedures.
- Business Associate may not Use or Disclose Protected Health Information in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity except for the specific Uses and Disclosures set forth below.
- Business Associate may Use Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate.
- Business Associate may only Disclose Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate, provided the Disclosures are Required By Law, or Business Associate obtains reasonable assurances from the Person to whom the information is disclosed that the information will remain confidential and Used or further Disclosed only as Required By Law or for the purposes for which it was Disclosed to the Person, and the Person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been Breached.
- Obligations of Business Associate Upon Termination. Subject in every case to the requirements of the Act and the HIPAA Rules, upon termination of this Agreement for any reason, Business Associate, with respect to Protected Health Information received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:
- Retain only that Protected Health Information which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
- At Covered Entity’s sole discretion: (i) return to Covered Entity the remaining Protected Health Information that Business Associate still maintains in any form or (ii) destroy such remaining Protected Health Information;
- Continue to Use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information to prevent Use or Disclosure of the Protected Health Information, other than as provided for in this Section 14, for as long as Business Associate retains the Protected Health Information;
- Not Use or Disclose the Protected Health Information retained by Business Associate other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at Section 14(d)(i) and (d)(ii) which applied prior to termination; and
- As to all Protected Health Information, when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities, then at Covered Entity’s sole discretion: (i) return to Covered Entity such Protected Health Information or (ii) destroy all such Protected Health Information retained.
- Definitions. The following terms used in this Section 14 shall have the following meanings:
- Notices. All notices, requests, demands, claims and other communications hereunder (collectively, “Notices“) must be in writing. Any Notice will be duly given if (and be deemed received two (2) business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the Parties as provided in this Agreement.
- Relationship of the Parties. Therapist is solely responsible for the manner and hours in which Therapy Services are performed. Therapist is solely responsible for all taxes, withholdings and other statutory, regulatory or contractual obligations of any sort (including, without limitation, those relating to workers’ compensation, disability insurance, Social Security, unemployment compensation coverage, the Fair Labor Standards Act, income taxes and compliance with other Laws), and is not entitled to participate in any employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs of Company. Nothing contained in this Agreement shall in any way be construed to create an agency relationship, partnership, employment relationship or joint venture between the Parties. Company does not warrant or guarantee in any way the successful acquisition of clientele to Therapist, and Company reserves the right to solicit to those clients within the databases and information held by the Company regardless of the current relationship the client has with Therapist. Without written permission, no more than 50% of business conducted by Therapist shall include using Therapy Modality methodologies. Notwithstanding the relationships of the parties governed by this agreement, separate agreements may be entered into to create an agency relationship, partnership, employment relationship or joint venture between the Parties.
- Choice of Law. This Agreement, its application and interpretation, and all rights and obligations of the Parties hereunder shall be governed by and construed exclusively in accordance with the laws of the State of Utah, excluding any choice of law rules which would apply the laws of another jurisdiction.
- Assignment; Binding Effect. Therapist may not assign this Agreement without Company’s prior written consent, which may be withheld in Company’s absolute discretion. This Agreement shall be freely assignable by Company. This Agreement shall binding upon and inure to the benefit of any permitted successor or assign of each Party.
- Entire Agreement. This Agreement represents the entire understanding between the Parties hereto with respect to the subject matter hereof, and this Agreement supersedes all previous representations, understandings or agreements, oral or written, between the Parties with respect to the subject matter hereof.
- Severability. Should one or more of the provisions of this Agreement become void or unenforceable as a matter of law, then this Agreement shall be construed as if such provision were not contained herein, and the remainder of this Agreement shall be in full force and effect.
- No Waiver. No waiver of any breach of any covenant or condition herein shall constitute a waiver of any subsequent breach.
- Amendment. No change or modification to this Agreement shall be valid unless the same shall be in writing and signed by the Parties hereto.
- Language. This Agreement is prepared and executed in the English language only, and any translation into any other language shall have no effect
- Independent Counsel. Therapist acknowledges that this Agreement has been prepared on behalf of the Company, by the Company’s counsel. The Company’s counsel does not represent, and is not acting on behalf of, Therapist. Therapist has been provided with an opportunity to consult with Therapist’s own counsel with respect to this Agreement.
- Counterparts. This Agreement may be executed via facsimile in one or more counterparts and transmitted via facsimile or .pdf, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. When counterparts of copies have been executed by all Parties, they shall have the same effect as if the signatures to each counterpart or copy were upon the same document and copies of such documents shall be deemed valid as originals.
IN WITNESS WHEREOF, The Parties hereto have executed this Agreement as of the date of acceptance by Therapist.
I have read, understood and I agree to the above