BrainSavers Terms & Conditions​

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Effective Date: 1 Year Per your invoice unless stated otherwise

 

Parties:

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• BrainSavers, Inc. – a Delaware corporation located at 3034 East Glenrosa Ave., Phoenix, AZ 85016 (called "BrainSavers" or the "Provider").

• [Customer Name] –at [Address] (called the "Customer" or "you").

 

Purpose:

BrainSavers offers the BrainSavers Brain+Body Total Fitness Program (the "Program"), which helps promote healthy brain aging through physical and mental exercises. The Customer wants to license this Program to offer it to its members/participants, and BrainSavers agrees to provide access to the Program under the terms below.

 

1, Grant of License and Permitted Use

 

• License Grant: BrainSavers grants you a non-exclusive, non-transferable license to use the BrainSavers Program and materials at the locations we approve (each a "Licensed Location"), for the sole purpose of offering BrainSavers classes to your members or participants (“Participants”). You may use the Program materials and BrainSavers’ name and logos only in connection with running and promoting these classes for your Participants, and only as permitted by this Agreement and our brand guidelines.

• Restrictions: You agree NOT to do any of the following:

  • Copy or distribute Program materials to anyone outside your organization (except to your Participants as part of the classes).

  • Modify the Program content or create any derivative works based on it without our prior written permission.

  • Use the Program or BrainSavers content for any purpose other than providing the classes to your Participants (you will not use it for any other commercial activities outside the scope of this license, with the exception of marketing and promotions to solicit Program participants and/or to facilitate new facility memberships).

  • Remove or obscure any BrainSavers trademarks, copyright notices, or proprietary markings on the materials.

  • Use the Program or materials in any manner that violates any law or infringes any person’s rights (including intellectual property rights).

 

Note: This Agreement does not give you any ownership interest in the Program or related materials whatsoever. All intellectual property rights in the Program remain with BrainSavers. We reserve any rights not expressly granted to you.

 

2. Your Responsibilities

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Instructor Qualifications: You are responsible for selecting and managing the instructors who will teach the Program classes. Each Instructor must meet the following minimum requirements:

 

• Be at least 18 years old.

• Hold a current certification as a group fitness instructor from a nationally recognized organization (for example, ACE, ACSM, AFAA, or NASM), or obtain such certification before teaching the Program. The Instructor must maintain this certification while teaching the Program (including completing any required continuing education).

• Have relevant fitness experience (e.g., at least one year of experience leading group fitness classes, preferably for seniors; or three years as a personal trainer; or a college degree in exercise science/kinesiology or a related field).

• Hold a current adult CPR certification.

• Complete BrainSavers’ training workshop for the Program (the HippoCampus Training and others to be named) and pass any required evaluation or test (as administered by BrainSavers).

 

Program Delivery: Instructors must teach the Program in accordance with BrainSavers’ curriculum and guidelines. Classes should follow the official Program materials and should not include unauthorized changes or additions without prior written consent by BrainSavers. BrainSavers may periodically (with notice) observe a class to ensure quality and consistency. If an Instructor is not delivering the Program to our standards, we may require additional training for that Instructor or ask you to replace the Instructor (we will give 30 days’ written notice for improvement or replacement if needed).

 

Safety and Compliance: You are responsible for providing a safe environment for all classes and for complying with all applicable laws, regulations, and facility rules during the delivery of the Program.

 

3. Intellectual Property and Brand Use

 

Ownership: BrainSavers owns all intellectual property rights in the Program and all materials provided. Except for the limited license granted to you above, you have no ownership or rights to BrainSavers’ intellectual property.

 

Use of Trademarks: BrainSavers® and “The Fitness Program to Remember”® are trademarks of BrainSavers. You may use these names and logos solely to advertise and conduct the Program classes under this Agreement and with the aforementioned marketing and promotions, and only in accordance with our brand usage guidelines. You must not alter our trademarks or use them in a misleading way. All goodwill from use of BrainSavers’ marks inures to BrainSavers. If we update our guidelines or request changes in how you use our brand, you agree to comply.

 

No Unauthorized Use: You will not use BrainSavers’ name, logos, or materials for anything beyond what this Agreement permits. This means, for example, you will not share or publish our proprietary materials outside your organization, nor will you use our content to develop or promote any competing program. If you become aware of any unauthorized use or misuse of the Program or BrainSavers materials (such as someone copying materials without permission), you will promptly notify us and cooperate with us in addressing it.

 

Confidential Materials: If BrainSavers shares any non-public or confidential materials or information with you (e.g., instructor manuals or business information), you must keep it confidential and use it only for the purposes of this Agreement.

 

4. Fees and Payment

 

You will pay the required license and program fees as set out in the BrainSavers Invoice. Payments are due as specified (e.g., annually in advance). If any payment is more than 30 days late, BrainSavers may suspend your access to the Program or terminate this Agreement for non-payment. Fees are non-refundable once paid, except as required by law or expressly stated otherwise. You are responsible for any applicable taxes on the fees (excluding taxes on BrainSavers’ income).

 

5. Insurance Requirements

 

Throughout the term of this Agreement, you agree to maintain insurance coverage at your own expense that meets the following minimum requirements:

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• General Liability Insurance: Commercial general liability insurance with coverage of at least $1,000,000 per occurrence and $2,000,000 aggregate, covering claims for bodily injury (including injuries to participants) and property damage.

• Workers’ Compensation: Workers’ compensation insurance as required by law for any employees or instructors involved in providing the Program (including employer’s liability coverage as applicable).

• Additional Insured & Waiver: Your liability insurance policy must name BrainSavers, Inc. (and its officers, directors, and employees) as an additional insured. It must also include a waiver of subrogation in favor of BrainSavers (so your insurer cannot seek recovery from us). The policy should provide at least 10 days’ advance written notice to BrainSavers before any cancellation or significant reduction in coverage.

• Insurance Carriers: All insurance must be carried with reputable insurers rated at least A by A.M. Best (or equivalent).

• Proof of Coverage: Upon request, you will provide BrainSavers with current certificates of insurance or other proof of the required coverage. Maintaining proper insurance is a material obligation under this Agreement.

 

6. Indemnification (Protecting Each Party)

 

6.1 By BrainSavers (Provider): BrainSavers will defend you against any third-party claim that the Program (as delivered by us and used according to this Agreement) infringes that third party’s U.S. intellectual property rights. We will pay any final judgment or settlement for such a claim. This indemnity is conditioned on you promptly notifying us of the claim in writing, giving us control of the defense and settlement (we will keep you informed), and cooperating with us. If such a claim arises, we may modify the Program or secure a license for you to continue using it. If we determine that neither is reasonably available, we may terminate this Agreement by written notice to you. This Section 6.1 states our entire obligation to you for any third-party intellectual property claims.

 

6.2 By Customer (You): You will defend and indemnify BrainSavers (including our officers, directors, and employees) from any third-party claim (including any losses, damages, costs, or reasonable attorneys’ fees) arising out of:•

• Injuries or Damages in Classes: Any claim of bodily injury, death, or property damage occurring in connection with the Program classes you offer.

• Your Negligence or Misconduct: Any claim resulting from your (or your instructors’ or staff’s) negligence, willful misconduct, or unlawful acts related to the Program.•

• Unauthorized Use or Breach: Any claim resulting from your use of the Program outside the scope of this Agreement, or from your material breach of this Agreement.

 

If a claim covered by your indemnification arises, BrainSavers will notify you and allow you to take over the defense, using legal counsel reasonably acceptable to us. (We have the right to participate in the defense at our own expense.) You may not agree to any settlement that imposes any obligation or admission of fault on BrainSavers without our written consent. If you do not promptly assume the defense of a claim after notice, we may handle the defense, and you will be responsible for our reasonable costs.

 

7. Disclaimer of Warranties

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BrainSavers provides the Program and all related services “as is”, without any warranties. The Program is a wellness and fitness program, not medical or healthcare advice or treatment. We do not warrant or guarantee that the Program will meet your requirements or achieve any particular results for your Participants. To the fullest extent allowed by law, we disclaim all implied warranties, including any implied warranties of merchantability or fitness for a particular purpose.

 

8. Limitation of Liability

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• No Indirect Damages: Neither party will be liable to the other for any indirect, special, incidental, or consequential damages related to this Agreement. This includes, for example, lost profits, loss of business opportunities, or loss of data, even if the party was advised that such damages could occur.•

• Liability Cap: Each party’s total liability to the other for any direct damages arising under or relating to this Agreement will not exceed the total fees paid by you to BrainSavers in the six (6) months immediately before the event giving rise to the claim. This cap applies regardless of the theory of liability (contract, tort, etc.).

• Exceptions: The above liability limits do not apply to your indemnification obligations in Section 6.2, or to damages caused by your unauthorized use or misuse of BrainSavers’ intellectual property or confidential information, or to any liability that cannot be limited by law.

 

9. Term and Termination

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Term: The term of this Agreement is one (1) year starting from the Effective Date. You may add additional Licensed Locations during the term by a written addendum signed by both parties; each added location will have a term of one year from its addition (unless otherwise agreed). This Agreement may be renewed or extended beyond the initial term by mutual written agreement. 

 

Termination:

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• If you fail to pay any fee when due and do not cure that failure within 30 days after receiving written notice from BrainSavers, we may terminate this Agreement. Likewise, if either party materially breaches this Agreement and (if the breach is curable) does not cure it within 30 days after written notice from the other party, the non-breaching party may terminate the Agreement. (If a breach cannot be cured, termination may be immediate.)

• BrainSavers may terminate this Agreement immediately upon written notice if you violate the intellectual property or confidentiality obligations in this Agreement.

• Either party may terminate this Agreement immediately if the other party becomes insolvent, files for bankruptcy, or is subject to any proceeding related to insolvency, receivership, or liquidation.

 

Effect of Termination: When this Agreement ends or expires, your license to use the Program ends immediately. You must cease offering BrainSavers classes and stop using all BrainSavers materials and trademarks. Within 30 days after termination, you must return or destroy all copies of BrainSavers materials in your possession or control. You must still pay any fees owed up to the date of termination. Except as otherwise provided herein, fees already paid are not refundable upon termination.

 

Survival: Any terms of this Agreement which by their nature should continue after termination (including provisions on intellectual property, confidentiality, indemnification, disclaimers, and liability limitations) will remain in effect.

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10. General Provisions

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• Entire Agreement & Amendments: This Agreement (including any attached Schedules) is the entire agreement between the parties regarding this Program license and supersedes any prior agreements or understandings. Any amendment or change to this Agreement must be in writing and signed by both parties.

• Assignment: You may not assign or transfer this Agreement (or any of your rights or duties under it) to anyone else without BrainSavers’ prior written consent. BrainSavers may assign this Agreement to a successor or affiliate, provided that the new owner agrees in writing to be bound by this Agreement. If that happens, we will notify you in writing.

• Independent Contractors: The parties are independent contractors. This Agreement does not create any partnership, joint venture, or agency between us, and neither party can bind or obligate the other.

• Notices: All notices or communications under this Agreement must be in writing and sent to the addresses of the parties stated at the beginning of this Agreement (or to any other address that a party designates in writing). Notices may be delivered by hand, by certified or registered mail (return receipt requested), by reputable courier, or by email. Notices are effective upon receipt by the receiving party.

• Governing Law & Venue: This Agreement is governed by the laws of the State of Arizona, without regard to its conflict of laws principles. Any dispute or legal action arising out of or related to this Agreement shall be brought in the state or federal courts located in Maricopa County, Arizona. Both parties consent to the exclusive jurisdiction of those courts.

• Force Majeure: Neither party will be liable for any failure or delay in performing its obligations (other than payment obligations) if that failure or delay is caused by circumstances beyond its reasonable control – for example, natural disasters, acts of war or terrorism, civil unrest, strikes, or governmental action.

• Severability & Waiver: If any provision of this Agreement is held by a court to be invalid or unenforceable, the rest of the Agreement will remain in effect. The failure of either party to enforce any term of this Agreement on one occasion will not waive that party’s right to enforce the term on other occasions. Any waiver of a term of this Agreement must be in writing and signed by the waiving party.

• Equitable Relief: You acknowledge that unauthorized use or disclosure of BrainSavers’ intellectual property or confidential materials would cause irreparable harm to BrainSavers for which monetary damages may be inadequate. Therefore, BrainSavers is entitled to seek immediate injunctive relief (a court order to stop the breach) in addition to any other remedies if you violate those obligations.

• Counterparts & Electronic Signatures: This Agreement may be signed in counterparts, which together will constitute one agreement. Signatures delivered by electronic means (e.g., via email PDF or an electronic signing service) are valid and binding.

 

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Acknowledgement of this Licensing Agreements is understood by the Customer payment of an invoice, and the parties agree to all of the above terms of this BrainSavers Program Licensing Agreement.

 

BrainSavers, Inc. (Provider)

Name: Paul E. Bendheim, MD

Title: CEO, Founder 

 

 

 

SCHEDULE A

 

A.DESCRIPTION OF SERVICES

 

Authorized Users will be given access to the Program, which consists of a series of courses. One course equals one week of material. The content includes segments such as:

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• Brain Workouts –Exercises designed to engage and strengthen cognition

• Deep Dives –Lessons on one (1) of the six (6) pillars of healthy brain aging

• Homework – Exercises Users can do at home

• Relaxation – Exercises that calm the body and the mind

• Review – Questions that emphasize the main points for the class

• Thinking & Moving – Exercises that work both brain & body

• Time to Move – Physical exercises

 

Segments may be added or subtracted from the program over time. A list of current content and segments can be found on the Providers’ website.

 

B.FEES

 

Live Training Fees and Trainer Certification Fees will be paid by the Party for the ONE-year Live Training term, with Trainer Certification valid for TWO years. The locations specific in your invoice will be listed seperatly but billed as one.

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Customer may substitute a Licensed Location on the Invoice for a different location by providing Provider with a written notice of the substitution at least 30 days before the date of the transfer. In such case, Customer will discontinue teaching the Program at the previous Licensed Location no later than the date on which Customer begins using the Program at the new Licensed Location.

 

If customer is unable to provide Licensed Location addresses prior to the execution of the contract, Customer will send the Licensed Location addresses by email within 15-days following execution of this agreement. Additional licensed locations will be added by addendum.

 

Provider will train up to 4 Certified Instructors PER class. For additional instructors and/or classes, contact BrainSavers for the additional fees.

 

Payments for Certified Training / Instructors will be made by direct deposit or credit card prior to training being activated.

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Payments for Programs will be made by direct deposit or credit card on an Annual basis, in advance of the year the program is being provided, unless agreed otherwise

 

 

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