WELLAWARE HOLDINGS, INC. ORDER TERMS AND CONDITIONS
These WellAware Holdings, Inc. (“WellAware”) Order Terms and Conditions (these “Terms”) govern each order form (each an “Approved Order”) issued by WellAware and accepted by the entity identified on the Order Form (a “Customer”).
- SCOPE OF AGREEMENT. These Terms shall govern WellAware’s delivery, sale and licensing of any Products or Services specified on an Approved Order. Any capitalized terms not defined in these Terms shall be defined as set forth in the applicable Approved Order. To the extent that there is an inconsistency between these Terms and any Approved Order, the Approved Order shall control with respect to the specific Equipment, Subscription Monitoring Services and Software and prices listed in that Approved Order. These Terms, together with the applicable Approved Order, supersede any prior agreements (including without limitation any nondisclosure agreements), proposals or other communications, oral or written, between the parties with respect to the Products and Services specified in that Approved Order. These Terms, together with the applicable Approved Order, supersede all documents, including any purchase orders issued by Customer and any additional or different terms or conditions included on any such documentation issued by Customer are hereby expressly rejected by WellAware. All references to “days” shall refer to calendar days unless “business days” is expressly referenced, in which case “business days” shall be defined as any day Monday through Friday other than days observed by WellAware as holidays.
- EQUIPMENT. “Equipment” means sensors, radios, controllers and other hardware and equipment provided, not sold, by WellAware to Customer. All Equipment is WellAware’s personal property, unless otherwise set forth explicitly in the applicable Approved Order that third party sensors and/or other third party hardware are sold directly to Customer through transfer of title and all risk of loss will pass to Customer upon delivery by WellAware to carrier, freight forwarder or Customer, whichever, occurs first. If WellAware requests, Customer shall mark Equipment to indicate WellAware’s interest. At WellAware’s request, Customer shall return Equipment to WellAware in the same condition as when delivered, ordinary wear and tear excepted, at such location as WellAware reasonably designates. Should Customer not return Equipment within sixty (60) days of WellAware’s written request, Customer is responsible for paying WellAware’s replacement cost at the then fair market value of the Equipment. Customer may not sublease, grant a security interest in, assign or otherwise transfer any rights, title and interest in and to any Equipment. Customer shall operate the Equipment in accordance with WellAware’s instructions. Customer shall maintain Equipment in good condition, reasonable wear and tear excepted, and shall comply with all laws to which Equipment’s use is subject. No alterations or accessions shall be made to Equipment without WellAware’s prior written consent. Customer will be responsible for and pay all packing, delivery, freight and insurance charges, which charges WellAware may require Customer to pay in advance.
- LIMITED WARRANTIES AND ACCEPTANCE.
- INTEGRATION SERVICES.If the Approved Order specifies that WellAware will provide Integration Services or discrete installation (“integration”), WellAware will provide Customer with notice that the integration has been completed, including any change orders requested and/or authorized by Customer at the time of integration. Customer acknowledges that WellAware’s obligation to complete any integration is conditioned on Customer’s performance of its obligations, including sufficient cooperation, information and access to enable WellAware to complete the integration. In order to ensure a successful deployment of the Platform Services, WellAware will provide a Customer Configuration form (“CCF”) to be completed by the Customer no later than three weeks from executing this Sales Order Form. Should customer fail to meet its basic performance obligations, including but not limited to Integration, WellAware reserves the right to invoice the customer the applicable fees set forth on the Approved Order. WellAware reserves the right to charge time and material rates for any additional mobilizations required for integration due to incomplete or inaccurate CCF information.
- Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS OR THE APPLICABLE APPROVED ORDER, WELLAWARE MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH ANY PRODUCTS OR SERVICES PROVIDED UNDER THAT APPROVED ORDER. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL PRODUCTS AND SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WELLAWARE DOES NOT REPRESENT THAT THE USE OF THE PRODUCTS AND SERVICES WILL BE COMPLETELY SECURE, UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED.
- SUBSCRIPTION MONITORING SERVICES.
- If the applicable Approved Order specifies that WellAware will provide Subscription Monitoring Services to Customer, the following terms shall apply.
- Term of Subscription Monitoring Services. WellAware reserves the right to make changes to its hosting and technical infrastructure during the Approved Order Term as deemed reasonably necessary by WellAware, provided such changes will not materially degrade the performance or functionality of the Subscription Monitoring Services. Unless otherwise specified in the applicable Approved Order, Subscription Monitoring Services are purchased for the initial subscription term specified in this Approved Order and shall automatically renew at the end of the initial subscription term for an additional period equal to the period of the initial subscription term unless Customer gives WellAware written notice of non-renewal at least sixty (60) days prior to the end of the then current subscription term. Subscription Monitoring Services are non-cancelable before the end of the then current subscription term. After the initial term, WellAware reserves the right to amend the fees payable for the Subscription Monitoring Services for the subsequent renewal term upon thirty (30) days prior written notice to Customer.
- License Restrictions. Subject to the terms and conditions of the Approved Order, WellAware hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license to: (i) access and use the Subscription Monitoring Services limited to the number of users for which Customer has paid the applicable fee for the Subscription Monitoring Services specified in the corresponding Approved Order (the “Subscription Fee”) and (ii) use any then-current documentation (if any) provided by WellAware in connection with the Subscription Monitoring Services (collectively, “Subscription Documentation”), in the case of (i) and (ii) solely for internal business purposes in accordance with the applicable Approved Order. Where applicable, WellAware will deliver to Customer all user IDs and passwords as necessary for Customer’s authorized employees and agents to access the Subscription Monitoring Services in accordance with the applicable Approved Order. Customer is responsible for all activities conducted under its user IDs and passwords and for ensuring its employees’ and agents’ compliance with these Terms and the applicable Approved Order. Customer shall not: (i) resell, sublicense, lease, time-share or otherwise make the Subscription Monitoring Services available to any third party; (ii) use the Subscription Monitoring Services to send or store infringing or unlawful material; (iii) use the Subscription Monitoring Services to send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (iv) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Subscription Monitoring Services or the data contained therein; (v) modify, copy or create derivative works based on the Subscription Monitoring Services; (vi) reverse engineer decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Subscription Monitoring Services; (vii) access the Subscription Monitoring Services for the purpose of building a competitive product or service or copying its features or user interface; (viii) use the Subscription Monitoring Services, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without WellAware’s prior written consent; or (ix) permit access to the Subscription Monitoring Services by a direct competitor of WellAware.
- Data Rights. “Data” means (i) all data submitted, stored, posted, or otherwise transmitted by the Equipment or on behalf of Buyer to the Subscription Monitoring Services or to Supplier and (ii) all other data and information relating to Buyer’s use of the Subscription Monitoring Services. Buyer shall retain all ownership rights in the Data, and the Buyer grants to Supplier a non-exclusive, royalty-free, worldwide license to use the Data and perform all acts with respect to the Data for the limited purpose of providing the Subscription Monitoring Services to Buyer, and a non-exclusive, worldwide, royalty-free, fully paid license to use, reproduce, modify, perform and display the Data but only as a part of Anonymized Statistics, as defined below. During any Approved Order and for one year after the expiration or termination of an Approved Order, upon Buyer’s written request, Supplier will provide at a fair and reasonable charge to Buyer not exceeding $3,000.00, a flat file copy of all requested Data. Supplier may monitor Buyer’s use of the Subscription Monitoring Services and Software and use data and information related to such use and Data but only in an aggregate or anonymous manner which will not by analysis or deduction identify Buyer or Buyer’s customers, including to compile statistical and performance information related to the provision and operation of the Software or Subscription Monitoring Services (“Anonymized Statistics”). All right, title and interest in the Anonymized Statistics and all intellectual property rights therein, belong to and are retained solely by Supplier, and Supplier may use or disclose Anonymized Statistics in its sole discretion. WellAware’s rights under this Section 4.1(c) survive any termination or expiration of these Terms.
- If the applicable Approved Order specifies that WellAware will provide Subscription Monitoring Services to Customer, the following terms shall apply.
- INTERNET CONNECTIONS; STORAGE; BANDWIDTH. Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Internet and use the Subscription Monitoring Services, including all third-party access, telecommunications and Internet connection charges.
- SOFTWARE LICENSE.
- Software. Subject to and conditioned upon Customer’s compliance with these Terms, WellAware and its suppliers grant to Customer a non-exclusive, non-transferable license to use any Software provided by WellAware during the term of the applicable Approved Order, subject to WellAware’s standard Terms of Service (“ToS”) provided with the Software, either in the product packaging or presented prior to Customer downloading the Software.
- Restrictions. Except as otherwise expressly provided under this Agreement, Customer shall have no right and specifically agrees not to: (i) transfer, assign or sublicense any of the license rights granted herein to any other person, including sharing of user login, or use software provided by WellAware except as expressly permitted by this Agreement or the applicable ToS, and any such attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to or otherwise modify or adapt software provided by WellAware or create derivative works based thereon, or to permit third parties to do the same; or (iii) decompile, decrypt, reverse engineer, disassemble or otherwise reduce software provided by WellAware to human-readable form, except to the extent otherwise permitted by law notwithstanding this clause.
- Terms of Service. To the extent that the applicable Approved Order permits Customer to provide access to the Software specified in that Approved Order to any of its employees, consultants or agents, Customer shall require any employee, consultant or agent given access to Software provided by WellAware under this Agreement to execute, either in writing or as a click-through acknowledgement, WellAware’s standard ToS applicable to the Software that they will be using or accessing.
- SUPPORT SERVICES. WellAware will use commercially reasonable efforts to provide the appropriate level of support services for the Equipment and the appropriate service levels for the Subscription Monitoring Services (collectively and individually referred to as the Support Services). WellAware may change how it provides Support Services at any time with or without notice, provided that if any change is a material and adverse change, then WellAware will give Customer prior written notice of the change. Certain support services for the Equipment may require a charge to the Customer, which will be based upon time and labor required.
WellAware shall use commercially reasonable efforts to ensure 99.5% data availability measured over the course of each calendar month during the Order Term, excluding unavailability as a result of scheduled maintenance (the “Base Availability Standard”). If the Subscription Monitoring Services do not meet the Base Availability Standard for two consecutive months, a service credit will be issued following such two-month period upon written notice to WellAware.
- PROPRIETARY RIGHTS. WellAware warrants that it has the right and authority to provide the Equipment, Software and Subscription Monitoring Services made available to Customer by WellAware. Customer acknowledges and agrees, as between WellAware and Customer, WellAware will own all right, title and interest in the Software, Subscription Monitoring Services and any other materials furnished or made available by WellAware hereunder, and all modifications and enhancements thereof, including all rights under copyright and patent and other intellectual property rights. There are no implied rights or licenses granted under this Agreement, and nothing in this Agreement transfers any ownership interest in any intellectual property embodied in any Equipment, Software or Subscription Monitoring Services provided by WellAware hereunder.
- PAYMENT TERMS. All charges, payments and amounts will be in United States dollars. Late payments may be assessed and will be calculated as one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date payment was due until the date paid. Customer shall reimburse WellAware for all reasonable costs incurred by WellAware in collection of delinquent amounts not subject to a reasonable and good faith dispute. Customer is responsible for any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes, excluding taxes based on WellAware’s net income. Customer shall reimburse WellAware for all reasonable, pre-approved and appropriately documented travel and related expenses incurred by WellAware in performing installation or support services, training or other professional services ordered by Customer. WellAware shall have the right to audit Customer’s records and use of Software or Subscription Monitoring Services to verify Customer’s compliance with all the terms of this Agreement and any applicable Approved Order. In the event that any audit reveals a material non-compliance, Customer shall reimburse WellAware for the reasonable cost of the audit and shall pay any omitted fees with applicable late penalty.
- CONFIDENTIALITY. “Confidential Information” means any information that the Customer knows or has reason to know (either because such information is marked or otherwise identified by WellAware orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is being provided by WellAware with an expectation that it be treated as confidential and not disclosed to others. The existence and terms and conditions of this Agreement, all Order Forms and all Approved Orders shall be treated as Confidential Information of WellAware. Customer agrees that it will not use, copy or reproduce such Confidential Information other than to fulfill its duties and obligations under this Agreement. Notwithstanding the foregoing, Customer will be entitled to disclose Confidential Information (a) to the extent required by applicable law or (b) the order of a court of competent jurisdiction, government agency or other legal process, provided that Customer will, to the extent not prohibited, provide notice of such required disclosure and allow WellAware to object prior to the disclosure of the Confidential Information.
- INDEMNIFICATION AND INSURANCE.
- WellAware Indemnification. WellAware shall defend Customer against any claims, demands, suits, or proceedings made or brought against Customer by a third party (a “Claim”) alleging that any Products or Services provided by WellAware in the its original form, without modification, and used by Customer in accordance with applicable usage instructions from WellAware, infringes or misappropriates any intellectual property rights of a third party enforceable in the United States. Upon notice of a claim of intellectual property infringement or if, in WellAware’s opinion, a claim of intellectual property infringement is likely, WellAware shall have the right, at its sole option and expense, to: (a) procure for Customer the right to continue using the affected Products and Services under the terms of this Agreement; (b) replace or modify the affected Products or Services claimed to be non-infringing without material decrease in functionality; or (c) if the foregoing options are not commercially reasonable, terminate this Agreement and if applicable, refund Customer all prepaid fees for the remainder of its Subscription Monitoring Services term after the date of termination. WellAware will pay any damages, losses, attorneys’ fees and costs awarded against Customer as a result of any Claim. The remedy set forth in this Section states the sole and exclusive obligation and liability of WellAware for intellectual property rights infringement or misappropriation of any kind.
- Customer Indemnification. Customer shall defend WellAware against any Claim alleging that the Data, or Customer’s use of any Products and Services in contradiction of usage instructions from WellAware or in violation of this Agreement, infringes or misappropriates the intellectual property rights of, or has otherwise harmed, such third party. Customer will pay any damages, losses, attorneys’ fees and costs awarded against WellAware as a result of any such Claim.
- Indemnification Procedure. The indemnified party will (i) promptly notify the indemnifying party in writing of any Claim for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, (ii) allow the indemnifying party to solely control the defense of any Claim and all negotiations for settlement (provided that in no event may either party enter into any third-party agreements which would in any manner whatsoever affect the rights of, or bind the other party in any manner to such third party, without the prior written consent of the other party) and (iii) provide reasonable cooperation to the indemnifying party, at the indemnifying party’s sole expense, in defending the Claim.
- WAIVER OF CONSEQUENTIAL DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM CUSTOMER’S USE OR RELIANCE ON PRODUCTS OR SERVICES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, BUSINESS INTERRUPTION, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR CUSTOMER’S USE OF THE PRODUCTS OR SERVICES, HOWEVER ARISING, EVEN IF A PARTY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
- LIMITATION OF LIABILITY. EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF AN APPROVED ORDER, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED A SUM EQUAL TO THE AMOUNTS ACTUALLY PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY LESS ANY AMOUNTS PAID FOR PRIOR CLAIMS.
- GOVERNMENT USERS. If Customer is a federal government entity, all Products and Services provided by WellAware, including related software and technology, are provided for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Products and Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in the applicable Approved Order.
- USE OF NAMES AND LOGOS; MARKETING. Unless explicit, written non-consent is provided, either party may use the other party’s logo and may refer to the other party in its customer or vendor lists.
- RELATIONSHIP OF PARTIES. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to these Terms or any Approved Order.
- NOTICES. Any notice required or permitted hereunder will be given in writing and delivered: (a) in the case of Customer, to the contact person listed on the relevant or latest Approved Order and (b) in the case of WellAware, to the contact person listed below, by either personal delivery, established overnight courier, facsimile transmission, certified or registered mail, or electronic delivery, receipt confirmed.
WellAware Holdings, Inc.
3424 Paesanos Parkway, Suite 200
San Antonio, TX 78231
Attn: CEO and CFO
- ASSIGNMENT. Customer may not assign these Terms or any Approved Order or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of WellAware, and any such attempted assignment in violation of the foregoing will be void. These Terms and the corresponding Approved Order shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- ATTORNEYS’ FEES. In any action to enforce these Terms or an Approved Order, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
- EXPORT/IMPORT. Both parties shall strictly comply with all applicable laws and regulations relating in any manner to the distribution of Products and Services, including all applicable import and export laws, rules and regulations.
- GENERAL. No waiver of any provision of these Terms shall be effective unless in writing and signed by the party against whom the waiver is to be asserted. If any of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining terms shall remain in effect. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. Except for Customer’s payment obligations, neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), service disruptions involving hardware, software or power systems not within such party’s possession or reasonable control, and denial of service attacks.
These Terms and all Approved Orders shall be governed exclusively by the internal laws of the State of Texas, without regard to its conflicts of laws rules, and all disputes hereunder shall be subject to the exclusive jurisdiction of the courts located in Bexar County, Texas. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. No modification of any of these Terms shall be effective unless in writing and either signed or accepted electronically by an authorized representative of the party against whom the modification is to be asserted.