Mindful Texts

Updated Jan 18, 2024

iDEAQUEST Solutions Inc. (D.B.A. MindfulText) (“Company”) has developed a text message delivery platform and Mindfulness learning content to educate users about Mindfulness that provides products, materials and services (collectively, the “Service“). As a condition for using the Service, each user of the Service (“User” and together with Company, the “Parties”) agrees to access and use the Service only in accordance with and subject to the terms and conditions of this agreement (“Agreement”). If a capitalized term is not defined or does not have a meaning ascribed to it in the context in which it is used, then the capitalized term shall have the industry standard meaning.

License and Usage
1. Limited License. Subject to the terms and conditions of this Agreement, Company hereby grants to User a limited, non-exclusive, non-transferable, revocable license (except as set forth in Section 10.6 (Assignment)) to access and use the Service solely for User’s own business purposes, and in accordance with all related user documentation customarily provided by Company (“Documentation“). No ownership or other rights or licenses of any kind are granted by Company to User hereunder with respect to the Service, including, without limitation, the source code, object code or underlying structure, ideas or algorithms of any of Company’s software, documentation or data related to, provided with, or used to provide the Service (the “Software“), and User shall not rent, sell, assign (except as set forth in Section 10.6 (Assignment)), lease, sublicense, or otherwise transfer or encumber the Service, including, without limitation, the Software.
2. Updates. Company reserves the right to update, upgrade, enhance, change or modify (“Update“) the Service or Documentation at any time in its sole discretion. Any Updates to the Service or Documentation made available to User will be at no extra cost to User insofar as such Updates are generally made available to Company’s customers free of charge, and shall be subject to the terms of this Agreement and deemed to be part of the Service or Documentation (as applicable).
3. Use Guidelines. User shall use the Service solely in accordance with the limited license granted in Section 1.1 (Limited License) and as otherwise contemplated herein. User acknowledges that the Software and Service are protected by ownership and intellectual property rights of Company or its third-party vendors or licensors (as applicable). Under no circumstances shall User be deemed to receive title to any portion of any Software, Service or resulting Company Analytics, title to which at all times shall vest exclusively in Company or its third-party vendors or licensors (as applicable). User shall not make or permit any alterations to the Service or remove any proprietary notices (e.g., copyright and trademark notices) therefrom. User shall not derive or attempt to derive the source code, source files, or structure of all or any portion of the Software by any form of reverse engineering, disassembly, or decompilation (of either the Software or the Company Analytics) and shall not access the Service in order to (a) build a product or service that is directly or indirectly competitive with the Software or Service; or (b) copy any ideas, features, functions or graphics of the Service. Software used in the Service will either be Company-hosted as part of the Service.
4. Restricted User Data, and Export Control Compliance.
  1. During the term hereof, User hereby grants Company a non-exclusive, world-wide, royalty-free license to use data provided by User in connection with the Service (the “User Data“) solely for purposes of fulfilling its obligations hereunder. User shall retain all ownership rights in the User Data. Company shall have the right to compile, distribute, and otherwise exploit anonymized, aggregated data derived from the User Data. Notwithstanding the foregoing, User hereby agrees that no such User Data or any data aggregated from it shall contain any non-public personal or confidential information (the “Restricted Data“) including but not limited to any PII, PHI, controlled unclassified information (CUI), or any government classified information. User shall take all steps necessary to prevent any such Restricted Data from being transmitted to or stored by Company while accessing and using Company’s Services. For the purposes of this paragraph, “PII” means Personal Identifiable Information as defined by California privacy laws (including California Civil Code sections 56-56.37); and “PHI” means Protected Health Information as defined by the Health Insurance Portability & Accountability Act of 1996 (“HIPPA”, 45 CFR Parts 160 and 164).
  2. User acknowledges and agrees that if any of the User Data is subject to export controls under the laws and regulations of the United States, including the Export Administration Regulations (15 C.F.R. Parts 730-774) and the International Traffic in Arms Regulations (ITAR), User will comply strictly with all such United States export controls, and shall not export, re-export, transfer, divert or disclose any such User Data while accessing and using Company Services, to any destination, end-use or end-user that is prohibited or restricted under such United States export control laws and regulations, except as specifically authorized by the Department of Commerce.
  3. User further warrants and represents that the User himself, herself or its employer is not (a) a national or resident of Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; nor (b) on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
  4. Any breach of this Subsection 1.4 (Restricted User Data, and Export Control Compliance) will be considered as a material breach to the Agreement by the User, and Company may, at its sole absolute discretion, terminate this Agreement, User’s access to the Company Services and products including the Software immediately without further notice to the breaching User. User will be solely responsible for any losses, damages, costs, liabilities, and any other expenses resulting from such termination.
  5. Company shall retain all ownership rights in any User Data analytics (“Company Analytics“). Promptly upon termination of this Agreement, User shall delete and destroy, or cause to be deleted or destroyed, all Company Analytics in its possession or control. User shall not publish any proprietary data without the express written consent and approval of Company.
Deliverables and Services
1. Maintenance and Technical Support. Company will provide administration, security management, performance tuning, and maintenance, and commercially reasonable technical support on weekdays between the hours of 8:00am and 5:00pm Pacific Time (except US holidays) for routine questions and minor issues and 24/7 for major issues. User’s employees or consultants will be solely responsible for the delivery of any and all technical support to end users.
2. Third Party Vendor Software and Services. User acknowledges that, to the extent Company licenses some or all of the Software or other components of the Service from third party vendors, (a) Company may make available to User certain third party software or services; and (b) Company may update such third party software or services, and such vendors may (without any obligation) make them available to Company for use in connection with the Service.
3. Additional Services. User may engage Company to provide or perform additional services (“Additional Services“) from time to time on mutually agreed upon terms set forth in a Statement of Work (“SOW“).
User Obligations
1. User Acknowledgements. To the extent applicable, User acknowledges and agrees that (a) Company is solely a technology provider; is not a fiduciary, financial institution, financial or investment adviser; or a provider of tax or legal services; (b) Company does not, and will not, advise User in conjunction with the Service; and User will not represent or imply to any third party anything to the contrary of the foregoing subsections (a) or (b). Company expressly disclaims, and shall not have any liability or responsibility whatsoever for any of the foregoing matters.
2. Compliance of Regulated Activities. Company and User recognize that this Agreement is subject to, and intended to comply with, Applicable Law, and agree that the Service addressed in this Agreement does not exceed that which is reasonably necessary to accomplish the commercially reasonable business purposes of this Agreement. If User is a regulated entity, User alone is responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to User’s use of the Service. Company expressly disclaims, and User acknowledges and agrees that Company and its directors, officers, employees, agents, and affiliates shall not have any responsibility or liability for any compliance programs pertaining to User’s activities or the User Data stored in the Service.
Fees and Taxes
1. Fees. User shall pay to Company fees in the amounts shown on the Company web-based portal or the Company website, or an applicable SOW, payable upon receipt of an invoice and according to the terms and conditions set forth therein.
2. Taxes. In addition to any other payments due under this Agreement, User agrees to pay, indemnify and hold Company harmless from any sales, use, transfer, privilege, tariffs, excise, VAT, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of providing the Service. If Company has the legal obligation to pay or collect taxes for which User is responsible under this section, the appropriate amount shall be invoiced to and paid by User, unless User provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
Confidential Information
1. Treatment of Confidential Information. Each Party hereby acknowledges and agrees that the other Party’s Confidential Information constitutes and contains valuable proprietary information and trade secrets of such Party, and embodies substantial creative efforts and confidential information, ideas, and expressions. Each Party agrees (a) to hold any and all Confidential Information obtained from the other Party in confidence, to take measures to protect such Confidential Information that are at least as protective as measures taken to protect its own information that it regards as confidential and proprietary, and to use and permit use of such Confidential Information solely as permitted hereunder; (b) to disclose or provide access to the other Party’s Confidential Information only to employees, agents or vendors on a need to know basis or as otherwise permitted hereunder; and (c) to make copies of the other Party’s Confidential Information only to the extent permitted hereunder. “Confidential Information“ means, with respect to any Party (and its affiliates, employees, agents, customers and vendors), all information or material that is non-public, confidential or proprietary in nature and is disclosed in connection with complying with the terms hereof, including but not limited to: (i) any trade secret, know-how, idea, invention, process, technique, algorithm, program (whether in source code or object code form), hardware, device, design, schematic, drawing, formula, data, plan, strategy or forecast; (ii) any technical, engineering, manufacturing, product, marketing, servicing, financial, personnel or other information or materials; and (iii) any User Data. Confidential Information shall not include information that (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving Party; (ii) was previously known to the receiving Party or rightly received by the receiving Party from a third party; or (iii) is independently developed by the receiving Party. Notwithstanding the foregoing, to the extent reasonably practicable and if permitted by law, a receiving Party may disclose Confidential Information pursuant to any applicable law, regulation or valid order issued by a court or governmental agency of competent jurisdiction; provided, that, the disclosing Party is given prompt written notice and an opportunity to object to such disclosure and seek protective treatment, and the scope of each such disclosure is limited to the greatest extent possible.
2. Non-Exclusive Equitable Remedy. The Parties acknowledge and agree that there may be no adequate remedy at law for any breach of a Party’s obligations under this Section 5. Therefore, upon any such breach or threatened breach, the nonbreaching Party may be entitled to seek appropriate equitable relief (without the necessity of posting a bond), in addition to whatever remedies it may have at law.
3. Permitted Disclosures in Connection with Transactions. Either Party may disclose to its prospective lenders, investors or acquirers who have entered into a nondisclosure agreement substantially similar to the confidentiality provisions of this Agreement, the existence of this Agreement.
Representations and Warranties
1. Mutual Representations. Each Party represents and warrants to the other Party that the execution, delivery and performance of this Agreement (a) is within its corporate powers; (b) has been duly authorized by all necessary corporate action on such Party’s part; and (c) does not and shall not contravene or constitute a default under, and is not and shall not be inconsistent with, any judgment decree or order, or any contract, agreement, or other undertaking, applicable to such Party.
2. Compliance with Law. Subject to Section 3.2 (Compliance of Regulated Activities), each Party has, in all material respects, complied with and will continue to comply with all local, state and federal laws, rules, and regulations applicable to its business, property and assets ( “Applicable Law“), and possesses, and will continue to possess throughout the term hereof, all necessary and required approvals, licenses and registrations under all Applicable Law.
3. Company Warranty. Company warrants that the Service shall materially comply with terms of this TOS. Subject to the provisions of Section 2.1 (Maintenance and Technical Support), User’s sole and exclusive remedy and Company’s sole and exclusive liability for breach of the foregoing warranty shall be, at Company’s sole determination, for Company to repair or replace the defective element of the Service or, if repair or replacement cannot be provided within a reasonable time, terminate the applicable element of the Service and refund any pre-paid fees on a pro-rata basis.
4. User Warranties. User represents and warrants that (a) it has full power, capacity, and authority to grant the license set forth in Section 1.4.1 with respect to User Data; (b) any User Data or other information provided by User to Company for use in connection with the Service or any Additional Service does not and will not infringe the intellectual property, publicity, or privacy rights of any person or other legal entity, and is not defamatory, obscene, or in violation of any law, rule, or regulation (including but not limited to applicable policies and laws related to spamming, privacy, and consumer protection); (c) its use of the Service or any Additional Services will be in material compliance with all Applicable Law.
5. DISCLAIMER OF WARRANTIES. EXCEPT AS PROVIDED IN SECTION 6.3 (COMPANY WARRANTY), THE SERVICE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE”, WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. Company, ITS AFFILIATES, VENDORS AND LICENSORS, INFORMATION PROVIDERS AND INFORMATION TRANSMITTERS (COLLECTIVELY, THE “DISCLAIMING PARTIES“) DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE AND/OR NON-INFRINGEMENT. THE DISCLAIMING PARTIES FURTHER DISCLAIM ANY WARRANTY REGARDING NONINTERRUPTION OF USE, DELAY, FREEDOM FROM BUGS, AND THAT USE OF THE SERVICE OR ANY ADDITIONAL SERVICES IS ERROR-FREE. CUSTOMER EXPRESSLY AGREES AND ACKNOWLEDGES THAT ANY USE OF THE SERVICE OR ANY ADDITIONAL SERVICES IS AT CUSTOMER’S SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANYOR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF Company’S OBLIGATIONS HEREUNDER. CUSTOMER AGREES AND ACKNOWLEDGES THAT THE SERVICE OR ANY ADDITIONAL SERVICES DO NOT AND ARE NOT INTENDED TO SUPPLY TAX, INVESTMENT, OR LEGAL ADVICE. CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAW (AS DEFINED HEREIN), MAKING ALL NECESSARY DISCLAIMERS TO ITS CLIENTS RELATING TO THE SERVICE (AS PROVIDED BY COMPANY), AND OBTAINING ALL NECESSARY AUTHORIZATIONS FROM CUSTOMER CLIENTS RELATING TO THE SERVICE. THE SERVICE MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT Company DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (A) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE OR (B) UNAUTHORIZED USERS (SUCH AS HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER DATA OR OTHER INFORMATION PROVIDED BY CUSTOMER OR END USERS, AND CUSTOMER’S WEBSITES, COMPUTERS, OR NETWORKS. COMPANY SHALL IN NO WAY BEAR ANY RESPONSIBILITY OR LIABILITY FOR ANY SUCH ACTIVITIES.
Indemnification
1. Indemnity Obligations of Company. Company shall indemnify, defend and hold harmless User and its affiliates and their respective directors, officers, employees and agents (collectively, the “User Indemnified Parties“) from and against any litigation, claims, demands, actions, suits, judgments, liabilities, losses, damages, costs, charges, counsel fees and other expenses (collectively, “Losses“) arising out of or resulting from (a) Company’s gross negligence or willful misconduct in the performance of its duties and obligations hereunder; (b) Company’s breach of any representation or warranty set forth herein or violation of Applicable Laws which apply to it (subject to Section 3(b) (Compliance with Applicable Law)); or (c) any third party claim alleging that use of the Service as furnished hereunder in accordance with the Documentation and terms and conditions hereof, infringes such third party’s United States patent, copyright or trademark rights.
2. User’s Indemnification. Except to the extent Company has agreed to indemnify User pursuant to Section 7.1 (Indemnity Obligations of Company), User shall indemnify, defend and hold harmless Company and its affiliates and their respective directors, officers, employees and agents (collectively, the “Company Indemnified Parties“) from and against any and all Losses resulting from or arising out of (a) the use of the Service or the Additional Services provided hereunder; (b) User’s breach of any representation, warranty, payment obligations set forth herein or violation of Applicable Laws; or (c) User’s breach of Section 1.4 (Restricted User Data, and Export Control Compliance) of this Agreement.
3. Conditions to Indemnification. An indemnitor’s obligations to indemnify an indemnitee hereunder are conditioned upon (a) prompt notification of any Loss; provided, however, that failure by indemnitee to provide such notice shall not relieve indemnitor of any liability hereunder if no prejudice occurs; and (b) indemnitee’s full cooperation in the defense of such Loss.
Limitation of Liability
1. LIMITED REMEDY. EXCEPT FOR DAMAGES RESULTING FROM CUSTOMER’S BREACH OF SECTION 1.4 (RESTRICTED CUSTOMER DATA, AND EXPORT CONTROL COMPLIANCE) OF THIS AGREEMENT, IN NO EVENT SHALL ANY DISCLAIMING PARTY OR CUSTOMER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, INCOME, GOODWILL, BUSINESS, USE, DATA OR ANY INFORMATION (INCLUDING END USERS’ PERSONAL DATA OR DOCUMENTATION), OR OTHER INTANGIBLE LOSSES, OR DAMAGES CAUSED BY THEFT, UNAUTHORIZED ACCESS, SYSTEMS FAILURE, OR COMMUNICATIONS LINE FAILURE, OR THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, CAUSED BY THE USE OF OR INABILITY TO USE THE SERVICE, MATERIALS OR ANY PRODUCTS PROVIDED HEREIN, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED.
2. MAXIMUM LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY OR THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, COMPANY’S ENTIRE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE AGGREGATE AMOUNT OF FEES ACTUALLY RECEIVED BY COMPANY FROM CUSTOMER FOR ITS USE OF THE SERVICE FOR THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE INCIDENT WHICH IS THE BASIS FOR LIABILITY AROSE.
Term and Termination
1. Term. The term of this Agreement shall be as set forth in the SOW. In the absence of any specific SOW, the term is one year from the Effective Date, with automatic one-year renewals, unless canceled by either party after providing 90 days advance notice in writing.
2. Termination. This Agreement shall terminate (a) on the thirtieth (30th) day after either Party gives the other Party written notice of a breach by the other Party of any material term or condition of this Agreement, unless such breach is cured before that day; or (b) on thirty (30) days’ written notice from Company in the event Company ceases to provide the Service.
3. Use of the Service. Company may, in its sole discretion, suspend User’s access to the Service (a) to prevent damage to, or degradation of, the Service; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Company from potential legal liability; or (d) for any material violation of the terms of this Agreement. Company shall use reasonable efforts to provide User with prior notice of any suspension of the Service. Company will restore access to the Service as soon as practicable following the satisfactory resolution of the event giving rise to suspension.
General Provisions
1. Notices. All notices hereunder shall be in writing and deemed to be properly given (a) upon personal delivery; (b) on the second business day after sending via facsimile or email, with written confirmation of receipt; or (c) if provided via overnight courier or first class mail, upon confirmation of receipt. All notices shall be sent to the address set forth on the signature pages hereto or to such other address as may be designated by the Parties.
2. Public Announcements. The Parties may collaborate on and issue a joint press release announcing this agreement within a commercially reasonable time frame or at some other mutually agreeable time. Regardless if such public announcement is made or not, Company shall have the right to use User’s name as a User reference, and to use User’s trademarks on Company’s customer lists. User shall have the right to use Company’s name as a vendor reference, and to use Company’s trademarks on User’s vendor lists.
3. Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither Party, nor either Party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the Parties is, and at all times shall continue to be, that of independent contractors.
4. No Exclusivity. Nothing in this Agreement may be construed as to create an exclusive relationship between the Company and User. For the avoidance of doubt, Company may solicit and may perform similar services for other clients, including clients in the same or substantially similar or competitive businesses to those engaged in by User and Services of substantially the same nature of or competitive with those produced hereunder.
5. Force Majeure. Except for the payment of monies due hereunder, neither Party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, pandemic, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, error in the coding of electronic files, Internet or other network “brownouts” or failures, power failures, novelty of product manufacture or other unanticipated product development problems, and acts of civil and military authorities (each a “Force Majeure Event“); provided, that, upon becoming aware of such Force Majeure Event such Party gives the other Party prompt written notice of the failure to perform and the reason therefor and uses its commercially reasonable efforts to limit the resulting delay in its performance.
6. Assignment. Neither Party may assign any of its rights or obligations under this Agreement without providing prior written notice to the other Party. Notwithstanding the foregoing, either Party may assign this Agreement without providing notice to, or obtaining the consent of, the other Party, at any time in connection with a merger, acquisition, corporate reorganization, or sale or transfer of all or substantially all of such Party’s assets. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
7. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any actions arising out of or relating to this Agreement shall be commenced in a federal court in California. User hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.
8. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1.4 (Restricted User Data, and Export Control Compliance). 4 (Fees and Payment), 5 (Confidential Information), 6 (Representations and Warranties), 7 (Indemnification), 8 (Limitation of Liability), 9 (Term and Termination) and 10 (General Provisions).
9. Waiver. The waiver by either Party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
10. Severability. If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable
11. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof, and supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the Parties relating to the subject matter of hereof. Except as provided expressly herein, this Agreement shall not be modified, amended, or in any way altered except by a writing executed by both of the Parties.