This JournalOwl Services Agreement is between JournalOwl, LLC, a Florida Limited Liability Company (“JournalOwl” or “We”) and the customer ordering the JournalOwl Services or using the website(s) operated by JournalOwl (the “Sites”) (“Customer” or “You”).
This JournalOwl Services Agreement is between JournalOwl, LLC, a Florida Limited Liability Company (“JournalOwl” or “We”) and the customer ordering the JournalOwl Services or using the website(s) operated by JournalOwl (the “Sites”) (“Customer” or “You”). By accessing the site or using the Services, You agree to be bound by the Agreement. This Agreement is effective as of the first to occur of: (i) the date You accept the Agreement in writing or via click-thru or other electronic form of consent or (ii) the first date upon which You are access or are provided with access to the Sites or Services (the “Effective Date”).
ACCEPTANCE OF AGREEMENT.
The Agreement governs your use of the Sites and Services, and You agree that your use of the Sites or Services shall constitute your binding acceptance of the Agreement. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THE AGREEMENT, YOU MUST IMMEDIATELY CEASE USE OF THE SITES AND SERVICES. Subject to your acceptance of the Agreement and compliance with its terms, JournalOwl grants You a limited, revocable, non-sublicensable right and license to use the Sites and Services in accordance with the Agreement and any additional terms as may be specified by JournalOwl from time to time.
The following words, when capitalized, have the meaning stated:
“Affiliate” means any legal entity that a party owns, that owns a party, or that is under its common ownership. “Ownership” means, for the purposes of this definition, control of more than a fifty percent interest in an entity.
“Agreement” means collectively this JournalOwl Services Agreement, any applicable Service Order, and any other addenda which govern the provision of the Sites and Services.
“Confidential Information” means non-public information disclosed by one party to the other in any form that: (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure. Confidential Information shall not include User Submitted Content.
“Intellectual Property” means patents, copyrights, trademarks, trade secrets, and any other proprietary intellectual property rights.
“Sensitive Data” means any: (i) trade secrets; (ii) financial records; and (iii) Protected Health Information (as that term is defined by 45 CFR § 160.103).
“Services” means the JournalOwl services identified in a given Service Order or otherwise provided subject to the terms of this Agreement.
“Representatives” means a party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, and agents.
“Service Order” means the document which describes the Services You are purchasing, including any online order, process, or tool through which You request or provision Services.
“User Account” means the unique login identifier and account through which You access the Services.
“User Submitted Content” means any feedback, feature request, or other materials or content which You submit or upload to the Sites or Services.
“Owls” are coaches or therapists that provide services to our Journalers.
Subject to the terms of this Agreement, and during the term of this Agreement, You may access and use the Sites and Services. We will provide the Sites and Services in accordance with the Agreement and any laws applicable to JournalOwl.
Payment Processing. If JournalOwl agrees to make payments to a third party on Your behalf, You acknowledge that the processing of such payments may take 7-10 business days and release JournalOwl utilizes a third party service provider to facilitate such payments, and You will enter into separate terms with that vendor. JournalOwl and its Representatives from any liability whatsoever in connection with such payments, whether timely made or not.
User Profiles. When you enroll in any of the Sites or Services, You may create or be required to create a user profile, and You agree that JournalOwl and its Representatives may utilize this user profile and the information You submit in connection with it across multiple Sites and Services. Common information included in and displayed as part of a user profile includes: first name, last initial, location, and any associated profile information which you have consented to or supplied as part of your use of the Sites and Services.
The Owls and Coaching Services
This platform may be used to connect you with an Owl who will provide coaching services to you through the platform.
Not every Owl that provides coaching services on this platform is accredited, trained, and/or licensed. Every Owl, however, is background checked and must be hand-selected by our team via a series of questions to receive the Owl insignia on their Community Profile. We also have fully accredited and licensed psychologists (e.g., PhD / PsyD) using our platform as Owls. Owls with licensure are required to provide evidence, such as: PhD/PsyD degree, LMFT licensure, LCSW licensure, or LPC licensure.
Owls are independent providers on this platform. They are not employees, nor agents, nor representatives. The Platform’s role is to provide free journaling services to the world and to also facilitate coaching services between the Owl and Journaler. Although we hope that our Full Immersion Program with an Owl is helpful to overcoming your challenges, you agree that it may not be appropriate for every life situation and should never serve as substitute for a face-to-face examination with a medical care provider.
THE PLATFORM IS NOT INTENDED FOR THE PROVISION OF CLINICAL DIAGNOSIS REQUIRING AN IN-PERSON EVALUATION AND YOU SHOULD NOT USE IT IF YOU NEED ANY OFFICIAL DOCUMENTATION OR APPROVALS FOR PURPOSES SUCH AS, BUT NOT LIMITED TO, COURT-ORDERED COUNSELING OR EMOTIONAL SERVICE DOG CERTIFICATION. IT IS ALSO NOT INTENDED FOR ANY INFORMATION REGARDING WHICH DRUGS OR MEDICAL TREATMENT MAY BE APPROPRIATE FOR YOU, AND YOU SHOULD DISREGARD ANY SUCH ADVICE IF DELIVERED THROUGH THE PLATFORM.
DO NOT DISREGARD, AVOID, OR DELAY IN OBTAINING IN-PERSON CARE FROM YOUR DOCTOR OR OTHER QUALIFIED PROFESSIONAL BECAUSE OF INFORMATION OR ADVICE YOU RECEIVED THROUGH THE PLATFORM.
USE LIMITATIONS, CUSTOMER OBLIGATIONS.
You must cooperate with Our reasonable investigation of outages, security issues, and any suspected breach of the Agreement. You are responsible for keeping your account information up to date, and your User Account secure. You must be over the age of 18 to use the Sites and Services. You are responsible for Your use of the Sites and Services and the use of the Sites and Services by anyone authorized by You. You must immediately notify Us if You identify any actual or suspected breach of the Agreement or compromise of your User Account. You represent and warrant that You shall use the Sites and Services in accordance with all applicable laws. You may not use the Sites or Services to store or transmit any Sensitive Data, unless explicitly provided for in an applicable Service Order. Except as explicitly authorized by the Agreement, You may not, and may not permit any other party to, create any derivative of, modify, retransmit, redistribute, frame, scrape, archive, or otherwise distribute or replicate any portion, element, or content of the Sites and Services. You may not use the Sites and Services in any manner which would: (i) defame, harass, intimidate, or disparage another person, or (ii) which would cause an abnormal or excessive use of the JournalOwl system resources or pose a security risk to the Sites and Services.
Provided by You. You may, but are not required to, provide JournalOwl with User Submitted Content. If You provide JournalOwl with any User Submitted Content, or any of your pre-existing Intellectual Property (“Customer IP”), then You hereby grant to JournalOwl a worldwide, perpetual, royalty-free, right and license (with right of sub-license to JournalOwl Representatives and other users of the Sites or Services) to use and distribute the User Submitted Content and Customer IP in connection with the Sites and Services. You represent and warrant that You have all rights in the User Submitted Content and Customer IP necessary to grant this license, and that JournalOwl’s use of such User Submitted Content and Customer IP shall not infringe on the Intellectual Property rights of any third party, or violate any applicable law, statute, regulation, court order, or decree. You agree that You will not provide, publish, upload as User Submitted Content, or otherwise distribute using the Sites or Services any copyrighted materials or content, or any other content which is defamatory, harassing, irresponsible, or otherwise prohibited by applicable law. You represent and warrant that any User Submitted Content You provide shall be truthful, accurate, and reliable, and shall not be false, fraudulent, or misleading.
Created by JournalOwl. Excluding User Submitted Content, JournalOwl shall own all Intellectual Property created by either party as part of providing or using the Sites or Services.
If the delivery of the Sites or Services infringes on the Intellectual Property rights of a third party and We determine that it is not reasonably or commercially practicable to obtain the right to use the infringing element or modify the Sites or Services such that they do not infringe then We may terminate the Agreement and will not have any liability on account of such termination except to refund pre-paid amounts for unused Services.
There is no fee for general browsing of the Sites, however some Services are made available on a fee basis, in which case We will notify You at the time You sign-up for such Services. Unless otherwise specified in writing at the time You enroll in any fee-based Services, any such fees applicable are due as of the date You enroll in such Services. If You have arranged for payment by credit card or ACH, We may charge your card or account on or after then enrollment date (and each subsequent renewal date) without further authorization or notice. If we agree to invoice You for Services, fees are due within 5 days of the invoice date. Charges and invoices that are not disputed within 90 days of payment (in the case of charges) or invoice date (in the case of invoices) are conclusively deemed accurate. We may charge interest on overdue amounts at the greater of 1.5% per month or the maximum legal rate, and You shall pay for any cost arising out of Our collection efforts.
Taxes. All amounts due under the Agreement are exclusive of any value added, goods and services, sales, use, property, excise and like taxes, import duties, and/or applicable levies (collectively “Tax”). You must pay any Taxes due on JournalOwl’s provision of the Services or provide JournalOwl with evidence of exemption from such Taxes in advance of invoicing.
Subscription Fees. Subscription fees for recurring services are not prorated, including upgrades between different service plans.
No refunds or credits shall be due or provided with respect to pre-paid fees for partial service term periods which are terminated by You or for Your breach of the Agreement. We may, in Our sole discretion, provide You with a refund for any elements of the Services.
We make no commitment to provide any Services other than those specifically committed to in writing. Except as explicitly provided for in the Agreement, the Sites and Services are provided AS-IS with no warranty whatsoever, on a “use at your own risk” basis.
JournalOwl and its Representatives disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement.
We do not promise that the Sites or Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that may result in the unauthorized access to or loss of information You provide as part of Your use of the Sites and Services.
TERM AND TERMINATION.
This Agreement is effective as of the Effective Date and shall continue to govern Your use of the Sites and Services until terminated by JournalOwl or superseded in accordance with its terms. JournalOwl may terminate this Agreement and cease provision of the Sites and Services, or any part thereof, with or without notice, in its sole and exclusive discretion, for any reason whatsoever with no liability other than to refund any unused pre-paid fees for terminated portions of the Services.
Either party may terminate the Agreement or the affected Service Order(s) for cause on written notice if the other party materially breaches the Agreement and does not remedy the breach within 30 days of the other party’s written notice describing the breach. If Your account becomes overdue at any time, We may terminate the Agreement or the applicable Service Orders for breach without further notice.
Some Services offer term and automatic renewal options, which will be identified in the applicable Service Order. If no term or renewal period is stated in a Service Order, then the Service Order shall default to month-to-month term, automatically renewing for successive 1 month periods until one party provides the other with notice of termination.
CONFIDENTIAL INFORMATION. Each party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Sites and Services, the exercise of its legal rights under this Agreement, or as required by law, and will use reasonable care to protect Confidential Information from unauthorized disclosure. Each party agrees not to disclose the other’s Confidential Information to any third party except: (i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement; (ii) as required by law; or (iii) in response to a subpoena or court order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice.
LIMITATION ON DAMAGES.
Direct Damages. Notwithstanding anything in the Agreement to the contrary, except for liability arising from: (i) death or personal injury caused by negligence, (ii) willful misconduct, (iii) fraudulent misrepresentation or (iv) any other loss or damages for which such limitation is expressly prohibited by applicable law, the maximum aggregate monetary liability of JournalOwl and any of its Representatives in connection with the Sites and Services or the Agreement under any theory of law shall not exceed the greater of (i) the total amount of fees paid by You to JournalOwl for use of the Sites and Services in the 6 months immediately preceding the events giving rise to the claim or (ii) $500.00.
Indirect Damages. Neither JournalOwl nor any of Our Representatives shall be liable to You for any indirect, special, incidental, exemplary or consequential loss or damages of any kind. JournalOwl shall not be liable for any loss that could have been avoided by Your use of reasonable diligence, even if the party responsible has been advised or should be aware of the possibility of such damages. In no event shall We or Our Representatives be liable for any punitive damages or for any loss of profits, data, revenue, business opportunities, customers, contracts, goodwill or reputation.
If We, our Affiliates, or any of Our or their Representatives (the “Indemnitees”) is faced with a legal claim by a third party arising out of Your actual or alleged: gross negligence, willful misconduct, fraudulent misrepresentation, breach of applicable law, breach of Your agreement with any third party (including a tenant, landlord, or roommate), or Your breach of the Agreement, then You will pay the cost of defending the claim (including reasonable legal fees) and any damages award, fine or other penalty that is imposed on the Indemnitees as a result of the claim. Your obligations under this Section include claims arising out of the acts or omissions of Your employees or agents, and anyone making use of Your User Account, even if the acts or omissions of such persons were not authorized by You.
We will choose legal counsel to defend the claim, provided that the choice is reasonable and is communicated to You. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without Your consent, which may not be unreasonably withheld, delayed or conditioned. You must pay costs and expenses due under this Section as We incur them.
NOTICES. Your routine communications to JournalOwl regarding the Sites and Services should be sent to the JournalOwl support team. To give a notice regarding termination of the Agreement for breach, indemnification, or other legal matter, You must send it by electronic mail and first-class post to:
309 Coffeen Avenue Suite 1548
Sheridan, WY 82801
JournalOwl’s routine communications regarding the Sites and Services and legal notices will be posted on the Sites or Services or sent by email or post to the individual(s) You designate as Your contact(s) on Your account. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a business day, as of the beginning of the first business day following the time posted or delivered. For purposes of counting days for notice periods, the business day on which the notice is deemed received counts as the first day.
PUBLICITY, USE OF MARKS. You agree that JournalOwl may publicly disclose that it is providing the Sites and Services to You and may use Your name and logo to identify You in the Sites and Services and promotional materials, including press releases. You agree that You will not use the JournalOwl marks and logos except as permitted by JournalOwl in writing.
ASSIGNMENT/SUBCONTRACTORS. You may not assign the Agreement or Your rights hereunder without the prior written approval of JournalOwl. JournalOwl may use its Affiliates or subcontractors to perform all or any part of the Sites and Services, but JournalOwl remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if JournalOwl provided the Sites and Services itself.
FORCE MAJEURE. Neither party will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond its control, such as significant failure of a part of the power grid, failure of the Internet, natural disaster or weather event, war, riot, insurrection, epidemic, strikes or labor action, terrorism, or other events beyond such party’s reasonable control.
GOVERNING LAW. The Agreement is governed by the laws of the State of Florida, USA, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Travis County, Florida, and we each agree not to bring any action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that You will not bring or participate in any class action lawsuit against JournalOwl or any of its Representatives. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
Notice of Claims of Intellectual Property Violations. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. It is JournalOwl’s policy to terminate any user or customer who repeatedly infringes on Intellectual Property rights. If You believe in good faith that any materials submitted to the Sites or Services infringe Your copyright, You (or Your agent) may send JournalOwl a notice requesting that the material be removed. The notice must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices with respect to the Sites or the Services should be sent to the address for notices as provided in Section 13 (Notices).
The Agreement constitutes the complete and exclusive understanding between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s) or understanding(s), written or oral.
If any part of the Agreement is found unenforceable, the rest of the Agreement will continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third party. The use of the word “including” means “including without limitation.” Other than Representatives, where referenced in the Agreement, there are no third-party beneficiaries to the Agreement. The headings or captions in the Agreement are for convenience only.
JournalOwl may modify the Agreement from time to time, and, while JournalOwl may send written notice of any such changes as required by applicable law, it is Your responsibility to keep up to date with and adhere to the posted terms. Some terms may be incorporated into the Agreement or a given Service Order, or the Sites and Services by reference to pages on a JournalOwl website. Any revisions will be effective and supersede and form part of the Agreement as of the time that (i) You enter into a new Service Order referencing the terms subject to revision, (ii) a Service Order renews pursuant to the Agreement (in which case You acknowledge that You have reviewed and accepted the then current terms), or (iii) 30 days following the public posting of such revisions if You continue to use the Site or Services. If there is a conflict between the terms of the Agreement, the documents will govern in the following order: this JournalOwl Services Agreement, the Service Order, and any other applicable addenda.
The following provisions shall survive expiration or termination of this Agreement: Intellectual Property, Confidential Information, Indemnification, Limitation on Damages, Governing Law, Notices, Miscellaneous, all terms of the Agreement requiring You to pay any fees for Services provided prior to the time of expiration or termination, or requiring You to pay an early termination fee, and any other provisions that by their nature are intended to survive expiration or termination of the Agreement.