Last updated: 10/31/2022
Wellable has developed certain proprietary technology (the “Wellable Technology”), including software programs that enable Wellable to capture certain information from third-party software applications (“Third-Party Apps”);
The Customer is the entity, organization, or company, accepting this Agreement. Employees or members, as applicable, of Customer (the “Members”) have agreed and, to the extent hired by Customer after the date hereof, will agree, to permit Wellable to capture certain information in connection with their use of Third-Party Apps and provide such information to Customer (the “Member Data”).
Customer desires to obtain, and Wellable desires to provide Customer, the Member Data, on the terms and conditions set forth herein.
By agreeing to this Agreement, you represent and warrant to Wellable that: (i) you are at least 16 years old; (ii) you have not previously been suspended or removed from the Services; and (iii) your use of the Services is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement and you agree to be bound by this Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
License from Wellable. Subject to Customer's compliance with the terms and conditions of this agreement, Wellable hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable right and license during the Term (as defined in a separate Order Form) to access and use the Wellable Technology for the purposes set forth on the Order Form.
Services. During the Term, Wellable will provide the Wellable Services (as defined on the Order Form) to Customer.
To access certain features of the Services, you may be required to register for an account, which, among other things, will allow you to add or remove Permitted Users, control and manage certain features of the Services, and perform other administrative functions with respect to your account. “Permitted Users” means your employees, consultants, contractors, and/or agents who are authorized by you to access and use the Services under the rights granted to you pursuant to this Agreement. When you register for an account, you may be asked to provide Wellable with certain information about yourself, such as your name, email address, or other information. You agree that the information you provide to Wellable is accurate, complete, and not misleading and that you will keep it accurate and up-to-date at all times. If you choose, or are provided with, a username, password, or any other piece of information as part of Wellable's security procedures, you must treat such information as confidential, and you must not disclose it to any third party. You also acknowledge and agree not to provide any third party with access to the Services or portions thereof using your username, password, or other security information. Notwithstanding the foregoing, you may authorize as Permitted Users certain third parties that have integrations with Wellable to access your Customer Data (and/or to upload additional data on your behalf, which data will be treated as Customer Data hereunder). You acknowledge and agree that (i) any such authorization by you will be deemed to grant Wellable permission to provide such third parties with access to your Customer Data within the scope of your authorization, (ii) you will at all times remain liable for the acts and omissions of such third parties on your behalf, and (iii) any Customer Data submitted, provided, uploaded, or transferred to Wellable by such third parties on your behalf may be used by Wellable as contemplated herein. If you believe that your account is no longer secure, then you must immediately notify Wellable at email@example.com. By creating an account, you also consent to receive certain electronic communications from Wellable. These communications may include notices about your account and are part of your relationship with Wellable. You agree that any notices, agreements, disclosures or other communications that Wellable sends to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from Wellable by printing a paper copy or saving an electronic copy.
Wellable shall have no responsibility to any party (including Customer) for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Member Data, and Wellable shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Member Data.
Wellable uses commercially reasonable efforts to maintain the highest service availability. However, Wellable cannot guarantee that the Services and Technology will operate in an uninterrupted or error-free manner. Wellable performs service maintenance and uses commercially reasonable efforts to schedule system downtime during off-peak hours and to avoid service interruptions and delays. Wellable will use commercially reasonable efforts to notify you in advance of any scheduled downtime. Wellable Support can is available seven days per week via firstname.lastname@example.org, and will reply within twenty-four hours.
In the event this Agreement is terminated or expires, Customer agrees and acknowledges that Wellable has no obligation to retain the Member Data and may delete such Member Data as of the date of such termination or expiration. Wellable reserves the right to withhold, remove, and/or discard Member Data, without notice, for any breach, including, without limitation, Customer’s non-payment.
Payment for License and Wellable Services. In consideration for the License to the Wellable Technology and Wellable’s provision of the Wellable Services, Customer shall make payment of the Implementation Fee and the Subscription Fee in the amounts and at the time(s) set forth on the Order Form.
Use of License from Wellable. Customer is responsible for all activity occurring under Customer’s license of the Wellable Technology and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Wellable Technology, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall notify Wellable immediately of any unauthorized use of any password or account or any other known or suspected breach of security and report to Wellable immediately and use reasonable efforts to stop immediately, any copying or impermissible distribution of the Wellable Technology or Member Data that is known or suspected by Customer.
Licenses to Wellable. To the extent necessary or useful, Customer hereby grants to Wellable a non-exclusive, non-sublicensable, non-transferable right and license during the Term to access, collect, and host the Member Data in connection with Wellable’s performance of the Wellable Services.
Customer Services. During the Term, Customer will promptly provide Wellable information as necessary to enable Wellable to add and remove Members, send communications, and effectively provide Wellable Services.
Customer Use of Member Data. Customer shall be responsible for the actions of its employees and representatives with respect to the use and/or misuse of the Wellable Technology or Member Data and will take customary and reasonable steps, which shall in no event be less than customary industry standard safeguards, to protect the Wellable Technology and Member Data from misuse.
Data Security and Privacy
While using the Services, you or your Members may transfer to Wellable certain Customer Data containing personal information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located (“Personal Information”). The terms of the Wellable Data Processing Addendum (“DPA”) are incorporated herein by reference and apply to the processing of Personal Information.
Confidential Information. Each Party’s Confidential Information (as defined below) made available to the other Party pursuant to this Agreement shall remain exclusively its own. Neither Party shall (a) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party, (b) modify or make derivative works based upon, or (c) reverse engineer or access the Confidential Information of the other Party, in each case other than as expressly permitted by this Agreement. Customer acknowledges that Wellable has not, by this Agreement or otherwise, prior to the date of this Agreement, transferred any property rights in or to the Wellable Confidential Information and Customer covenants and agrees not to take any action that would adversely affect in any manner Wellable’s exclusive ownership of the Wellable Confidential Information. For purposes of this Agreement, “Confidential Information” means the terms of this Agreement and all other non-public information and know-how of the other Party disclosed to or acquired by the receiving Party pursuant to or in connection with this Agreement that is either designated as proprietary and/or confidential or by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential and, with respect to Wellable, includes the Wellable Technology.
Representations and Warranties.
Warranty of Authority. Each Party represents and warrants to the other that (a) such Party is duly organized and validly existing under the laws of the state/country of its incorporation or organization, and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof; (b) this Agreement is a legal and valid obligation binding on such Party; and (c) the execution, delivery, and performance of this Agreement by each Party does not conflict with any agreement, instrument, or understanding, oral or written, to which it is a Party or by which it may be bound, and it does not violate any law or regulation of any court, governmental body, administrative agency, or other agency having jurisdiction over it.
Wellable’s Representations and Warranties. Wellable represents and warrants that its obligations under this Agreement will be provided without violating or infringing upon any patent, copyright, trade secret, or other property or contract right of any other person or entity and in compliance with applicable laws, ordinances, rules and regulations (in each case other than with respect to the collection of Member Data as contemplated by Section 5.3) and Wellable will, in accordance with the terms of this Agreement, indemnify Customer for all direct losses actually incurred thereby as a result of inaccuracies in Wellable’s statement in this Section 5.2.
Customer’s Representations and Warranties. Customer represents and warrants that its obligations under this Agreement and the collection and provision of Member Data by Wellable as contemplated by this Agreement will not violate (a) any agreement between any third party and Customer, including the Members; (b) applicable law; or (c) any intellectual property rights of any other person or entity and Customer will, in accordance with the terms of this Agreement, indemnify Wellable for all direct losses actually incurred thereby as a result of inaccuracies in Customer’s statement in this Section 5.3.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WELLABLE MAKES NO REPRESENTATIONS, GUARANTEES, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WHETHER ARISING BY LAW, CUSTOM, ORAL OR WRITTEN STATEMENTS OF WELLABLE, ITS AGENTS OR EMPLOYEES OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, WELLABLE EXPRESSLY DISCLAIMS ANY WARRANTY OR LIABILITY WITH RESPECT TO DESIGN, LATENT DEFECTS, RELIABILITY OR ACCURACY OF THE MEMBER DATA.
LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDEMNITY OR CONFIDENTIALITY OBLIGATIONS ARISING UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAYABLE UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO THE DATE SUCH ALLEGED CLAIM AROSE.
Survival. Section 4, the indemnification provisions of Section 5, and Section 6-9 shall survive the termination of this Agreement, along with any payment obligations that have accrued as of the date of such termination.
General. This Agreement contains the entire agreement between the Parties and supersedes and replaces any and all prior or contemporaneous agreements or understandings (whether written or oral) concerning the subject matter hereof. No term or condition of this Agreement may be amended or waived except by a writing signed by both Parties. This Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. This Agreement shall not be construed to create a joint venture, partnership or the relationship of principal and agent between the Parties. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes: (a) on the delivery date if delivered personally; (b) one business day after deposit with a commercial overnight carrier, with written verification of receipt, or (c) five business days after the mailing date, whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage prepaid, or any other means of rapid mail delivery for which a receipt is available, to the address of the Party to whom the same is directed as first set forth above. If any provision of this Agreement is determined by a court or other authority having competent jurisdiction to be void, illegal or otherwise unenforceable, that provision shall be enforced to the maximum extent allowed so as to effect the intent of the Parties and all other provisions of this Agreement shall remain in full force and effect and shall not thereby be affected or impaired. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties. Neither Party may issue any such public announcement regarding the subject matter of this Agreement without the other Party’s prior written consent, which consent shall not be unreasonably withheld.
In consideration for the right to use the Services under the terms herein, you will pay subscription fees in the amount and subject to the payment terms set forth in your Order Form. Unless otherwise agreed in writing by the parties, the price on the Order Form will apply to any additional subscriptions you purchase during the subscription term. You agree that in the event Wellable is unable to collect the subscription fees owed to Wellable for the Services, Wellable may take any other steps it deems necessary to collect such fees from you and that you will be responsible for all costs and expenses incurred by Wellable in connection with such collection activity, including collection fees, court costs, and attorneys’ fees. You further agree that, if you fail to make any payment when due, then, in addition to all other remedies that may be available: (i) Wellable may collect interest at the lesser of 1.0% per month or the highest amount permitted by law on any amounts not paid when due; and (ii) if such failure continues for 7 days following written notice thereof, Wellable may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to you by reason of such suspension. Except to the extent otherwise expressly stated in this Agreement or in an Order Form, all obligations to pay subscription fees are non-cancelable and all payments are non-refundable. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Wellable regarding future functionality or features.
Your subscription fees are exclusive of taxes, levies, duties or similar governmental assessments of any kind (excluding taxes based on Wellable's income, property and employees). You will be responsible for paying any and all such taxes.
Wellable reserves the right to modify the subscription fees for the Services, effective upon commencement of the next renewal subscription term of the relevant Order Form(s), by notifying you of such change in writing at least 90 days before the end of the then-current subscription term and the relevant Order Form(s) will be deemed amended accordingly. You will receive standard updates to the Services that are made generally available by Wellable during the subscription term specified in the Order Form. However, Wellable reserves the right to offer additional functionality or premium feature improvements for an additional cost. All rights not expressly granted herein are reserved by Wellable and its licensors.
TERM AND TERMINATION
This Agreement is effective beginning when you (a) accept this Agreement, (b) register for an account, or (c) access or otherwise use the Services, in each such case whichever occurs first, and ending when terminated as described in this Section 11.
The initial subscription term for the Services will be as set forth and agreed upon by the parties in an applicable Order Form.
Either you or Wellable may terminate the Agreement if the other party (i) materially breaches the Agreement and has not cured such breach within 30 days after receiving notice (if curable), without prejudice and in addition to any right or remedy that the non-defaulting party may have under the Agreement or applicable law.
At the end of the initial subscription term, except as otherwise specified in an Order Form, all Wellable subscriptions purchased by you pursuant to an Order Form (including any additional subscriptions added to your account) will renew automatically for additional 12-month periods unless you or Wellable notifies the other in writing, at least 60 days prior to the end of the then-current subscription term, that it chooses not to renew (the initial subscription term, along with any renewal subscription terms, are referred to as the “subscription term”).
In the event of a termination due to an uncured breach by Wellable pursuant to Section 11.3, Wellable will refund you any prepaid subscription fees for Services that have not been provided under the applicable Order Form on a pro-rated basis. If this Agreement is terminated by Wellable in accordance with Section 11.3 above, you will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve you of your obligation to pay any fees payable to Wellable for the period prior to the effective date of termination.
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This Agreement shall be construed in accordance with and governed by the laws of the Commonwealth of Massachusetts, without regard to principles of conflicts of law. The Parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts. Neither Party shall have the right to assign or sublicense (except as otherwise set forth in this Agreement) the rights or obligations set forth in this Agreement without the other Party’s prior written consent.