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”).
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.
- INTEGRATION SERVICES.If
- 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. - 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.
- Term of Subscription Monitoring Services. WellAware reserves the right to make changes to its
- If the applicable Approved Order specifies that
- SCOPE OF AGREEMENT.
- 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.
- Software.
- 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. Customer is responsible for maintaining Equipment in good
working condition while deployed on location including, but not limited
to, maintaining proper external power, replacement of internal batteries, fuses,
cellular connectivity, and proper wiring. Remote support services are
available via phone or email at 210-816-4600, extension 2 and support@wellaware.us. If Customer is unable to resolve an Equipment
issue themselves or after contacting WellAware Support for assistance, then
WellAware Support will determine if a WellAware field resource is required
for further service. Certain support services for the Equipment may
require a charge to the Customer, which will be based upon time and labor
required.
- SOFTWARE LICENSE.
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.
- WellAware Indemnification. WellAware shall defend Customer against any claims,
- 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.
- PROPRIETARY RIGHTS.
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.
- ASSIGNMENT.
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.