WELLAWARE HOLDINGS, INC. ORDER TERMS AND CONDITIONS
These These WellAware Holdings, Inc. (“”) Order Terms and Conditions (these “”) govern each order form (each an “ ”) that is issued by WellAware and accepted by the entity identified on the Order Form (a “”).
1. 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 with respect to equipment, software and services to be provided by WA and any additional or different terms or conditions included on any such documentation 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.
2. Except as otherwise set forth in the applicable Approved Order, title and all risk of loss of, or damage to Equipment delivered by WellAware pursuant to the Approved Order, will pass to Customer upon delivery by WellAware to the carrier, freight forwarder or Customer, whichever occurs first. Customer will be responsible for and pay all packing, delivery, freight and insurance charges, which charges WellAware may require Customer to pay in advance.
If the Approved Order specifies that WellAware will provide Equipment and/or Hardware, that Equipment (including any software that is integrated and/or incorporated into the Equipment) and Hardware will be warranted to the same extent as the warranties (and subject to the same exclusions) provided by the manufacturers, which shall be assigned by WellAware to Customer to the extent assignable.
If the Approved Order specifies that WellAware will provide Integration Services relating to Equipment, WellAware will provide Customer with notice that the integration of Equipment has been completed, including any changes orders requested and/or authorized by Customer at the time of integration. Customer will have a period of no more than three (3) business days (the ““) to confirm that the Equipment has been installed in substantial conformance with the terms of this Approved Order, including any change orders. Unless Customer provides WellAware with express written notice within the Acceptance Period that the Equipment integration is not satisfactory, including a detailed explanation and description of the non-conformities, Customer will be deemed to have accepted the Equipment as installed. If Customer provides such written notice, WellAware will promptly confirm and correct any non-conformities and give Customer notice of such correction, initiating a subsequent Acceptance Period. This procedure shall repeat until Customer has accepted or is deemed to have accepted the Equipment as installed. Customer acknowledges that WellAware’s obligation to complete any Equipment integration is conditioned on Customer’s performance of its obligations, including sufficient cooperation, information and access to enable WellAware to complete the integration. Customer is required to provide WellAware with applicable information to build and complete integration activities no later than 90 days from the date of the Approved Order.
3.4 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.
If the applicable Approved Order specifies that WellAware will provide Subscription Monitoring Services to Customer, the following terms shall apply.
(a) Term of Subscription Monitoring Services. WellAware reserves the right to make changes to its hosting and technical infrastructure during the 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.
(b) 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, “”), 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.
(c) Data Rights. Customer shall retain all ownership rights in any data stored by Customer in the Subscription Monitoring Services (the ““) and in Customer’s confidential information, provided that Customer hereby grants WellAware a non-exclusive, worldwide royalty-free, fully paid-up license (including the right to sublicense through multiple tiers) to use, reproduce, distribute and modify any Customer Data, in whole or in part, and Customer’s confidential information as necessary to provide the Subscription Monitoring Services and to evaluate technology performance and benchmarking and marketing purposes, as well as use or incorporate any Customer Data in analysis, conversions, projections, abstracts, computations, algorithms and similar work, provided that WellAware continues to maintain the confidentiality and security of such information and data, and WellAware shall own all such analysis, conversions, projections, abstracts, computations, algorithms and anything similar.
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. WellAware will use commercially reasonable efforts to implement and maintain generally accepted industry standard technical, administrative and physical security measures, policies and procedures designed to ensure the confidentiality and privacy of personal data provided to or obtained or stored by WellAware in connection with its provision of the Subscription Monitoring Services to Customer.
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.
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, 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.
. 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.
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 make the Subscription Monitoring Services available for access and use by the Customer over the Internet at least 99.5% of the time as 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.
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, other than any Equipment for which the purchase price has been fully paid to WellAware, 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. Customer grants to WellAware a non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for WellAware to provide the Subscription Monitoring Services to Customer, and a non-exclusive, transferable, sub-licensable, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify, distribute, perform and display the Customer Data as a part of any Anonymized Statistics, as defined below. WellAware may monitor Customer’s use of the Subscription Monitoring Services and Software and use data and information related to such use and Customer Data in any aggregate or anonymous manner, including to compile statistical and performance information related to the provision and operation of the Software or Subscription Monitoring Services (“”). All right, title and interest in the Anonymized Statistics and all intellectual property rights therein, belong to and are retained solely by WellAware, and WellAware may use or disclose Anonymized Statistics in its sole discretion.
All charges, payments and amounts will be in United States dollars. WellAware will invoice the customer no later than 90 days after the date of an Approved Order unless WellAware has not fulfilled the Products under the Approved Order. 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 integration 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.
9. In the event of termination of an applicable Approved Order, the Customer shall not be relieved from fulfilling and paying for the unamortized cost of Equipment and integration services, if any, within any terminated Approved Order entered into prior to the effective termination date of the applicable Approved Order, nor shall the Customer be relieved from payment for services and payment obligations that are outstanding as of the effective termination date. In the alternative, if another company takes over the Equipment and enters into a monitoring arrangement with Supplier, the Customer will not be liable for any unamortized Equipment or integration service costs. WellAware will continue to use reasonable commercial efforts to support existing end users of the Customer utilizing WellAware Products or Services, including any necessary firmware or software updates or fixes, for the remaining Term of the Approved Order upon Customer’s commitment to meet the payment obligations of such Approved Order. The Customer shall return WellAware’s equipment in good working condition at Customer‘s expense. If Customer is unable or unwilling to remove and/or return WellAware’s equipment, WellAware will be given appropriate access to locations or facilities to pick up equipment for a fair and reasonable charge to the Customer.
10. “” means any information that the receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party 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 the disclosing party 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. Each party agrees that it will not use, copy or reproduce such Confidential Information other than to fulfill its duties and obligations under this Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known by the receiving party without restriction on disclosure prior to disclosure by the disclosing party, (ii) generally known to the public without the receiving party’s breach of any confidentiality obligations to the disclosing party, or (iii) lawfully obtained by the receiving party without restriction on disclosure from a third party who is not violating any confidentiality obligations to the disclosing party by making such disclosure. Neither party may disclose to third parties, other than its agents and representatives on a need-to-know basis in order to fulfill the receiving party’s duties and obligations under this Agreement, any Confidential Information of the other party, without the prior written consent of the other party. Notwithstanding the foregoing, each party will be entitled to disclose the Confidential Information of the other party (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 the disclosing party will, to the extent not prohibited, provide notice of such required disclosure and allow the non-disclosing party to object prior to the disclosure of the Confidential Information.
11.1 WellAware shall defend Customer against any claims, demands, suits, or proceedings made or brought against Customer by a third party (a “”) 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. 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.
11.2 Customer shall defend WellAware against any Claim alleging that the Customer 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.
11.3 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.
12. 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.
13. 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.
14. . 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.
15. Either party may refer to the other party in its customer or vendor lists.
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.
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 President
. 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.
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.
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.
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.