Terms and Conditions
By accessing Health Here’s online platform (the “Platform”) and using its services (the “Platform Services”), you (the “Client”) agree to the terms and conditions set forth herein (the “Terms and Conditions” or the “Agreement”). The Terms and Conditions may be updated form time-to-time. Health Here shall provide Client with access to updated Terms and Conditions at least thirty (30) days before the
updated Terms and Conditions go into effect. The Terms and Conditions shall apply to all arrangements between Client and Health Here (“Underlying Arrangement”). To the extent there are conflicting terms in the Terms and Conditions and any Underlying Arrangement, the terms of this Terms and Conditions shall control unless the Underlying Arrangement explicitly notes that the specific term in Underlying Arrangement is controlling.
I. Ownership Rights.
A. Intellectual Property Rights. Nothing in this Agreement shall transfer to Client any ownership rights in or to the Platform Services, Client acknowledges and agrees that Health Here is the sole and exclusive owner of all rights, title, and interests (including without limitation any intellectual property rights) in and to the Platform Services, any suggestions or feedback provided by or on behalf of Client regarding the Platform Services, and any other code, documentation, technology, works of authorship, inventions, or other intellectual property provided or made available by Health Here in connection with this Agreement (the “Health Here Intellectual Property”). To the extent Client acquires any rights in any Health Here Intellectual Property, Client agrees to perform, at Health Here’s cost, such further acts, including without limitation the execution of assignments and other documentation, as reasonably necessary to further evidence Health Here’s exclusive ownership in the Health Here Intellectual Property.
B. Client Data. Health Here acknowledges and agrees that all data submitted, inputted, or entered by Client, its affiliates, or any of their users, agents, or subcontractors in receipt of the Platform Services (“Client Data”) is and shall remain the sole and exclusive property of Client, and all right, title, and interest in the same is reserved by Client.
C. Aggregate Data. Client acknowledges and agrees that Health Here shall have the right to collect, store, maintain, use, and analyze any Client Data in an aggregated, de-identified form as transformed by Health Here through or in connection with the Platform Services, including without limitation any aggregate, de-identified data concerning the characteristics, symptoms, search queries, or any other data submitted by Client or its affiliates accessing the Platform Services (collectively “Aggregate Data”); provided, that such Aggregate Data shall be used solely for statistical analysis, product improvement, and support and development of new features. For the avoidance of doubt, Health Here shall not identify Client or its customers or users. Health Here shall solely and exclusively own all rights, title and interests in and to all Aggregate Data (if any). For avoidance of doubt, Aggregate Data shall not be redistributed to any third party without the expressed written consent of the Client.
D. Health Here Data. Notwithstanding any provision of this Agreement to the contrary, the parties acknowledge and agree that Health Here will create or obtain information and data from performance of the Platform Services (collectively, “Health Here Data”); provided, that for the purpose of clarity, Health Here Data shall not include any Client Data provided by Client to Health Here under this Agreement. The parties agree that Health Here shall be the sole and exclusive owner of all Health Here Data, and it shall be deemed to be Confidential Information of Health Here. Health Here shall solely and exclusively own all rights, title and interests in and to all Health Here Data. Nothing in this Agreement will restrict or limit in any way Health Here’s rights or obligations as owner or controller of the Health Here Data.
E. Marketing Materials. Subject to Client’s prior written consent and approval by Client, Health Here may include Client’s name and a factual description of the work performed under this Agreement (i) on marketing materials, (ii) in a list of references or clients, (iii) in the experience section of its proposals or marketing documents, (iv) in internal business planning documents, (v) in reports to stockholders, offering memorandum, and other securities disclosure documents, and (vi) whenever necessary to meet legal, accounting or regulatory requirements.
II. Warranties; Disclaimer.
Client represents and warrants to Health Here that it is authorized to disclose to Health Here and/or permit Health Here to use any Client Data disclosed to Health Here, and that the use or disclosure of Client Data described in and in accordance with the terms of this Agreement (and in accordance with the terms of the BAA (as defined in this Agreement)) shall not result in the breach or violation of any law, any confidentiality obligation or any contract to which Client is a party or by which it is bound, including without limitation the BAA.
Health Here represents and warrants to Client that (i) to Health Here’s knowledge, the Platform Services, as provided by Health Here, shall not infringe or misappropriate the patent, copyright, trademark, trade secret, or other intellectual property rights of any third party (provided that Client’s sole and exclusive remedy for any violation of this intellectual property infringement representation and warranty is provided in Section IV ; and (ii) it shall follow industry standard procedures designed to ensure that the Platform Services do not incorporate (or introduce into any Client software, computers or network) any malicious software code the purpose of which is to disrupt, damage or interfere with Client’s software, computers or network.
B. Disclaimer. EXCEPT AS SET FORTH IN SECTION II.A.2 ABOVE, THE SERVICES AND ALL OTHER MATERIALS AND INFORMATION PROVIDED BY HEALTH HERE OR ANY OF ITS LICENSORS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND HEALTH HERE AND ITS
LICENSORS MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OPERABILITY, CONDITION, TITLE, NON-INTERFERENCE, ACCURACY, TIMELINESS, QUALITY, OR COMPLETENESS, ALL TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NEITHER HEALTH HERE NOR ANY OF ITS LICENSORS WARRANT THAT THE OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. CLIENT ACKNOWLEDGES AND AGREES THAT HEALTH HERE HAS NOT REPRESENTED THE SERVICES AS HAVING THE ABILITY TO DIAGNOSE, PRESCRIBE, TREAT, OR PERFORM ANY OTHER TASKS THAT CONSTITUTE THE PRACTICE OF MEDICINE. THE PARTIES ACKNOWLEDGE AND AGREE THAT HEALTH HERE DOES NOT PROVIDE MEDICAL SERVICES TO PATIENTS AND IS NOT ENGAGED IN THE PRACTICE OF MEDICINE. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT THE SERVICES PROVIDED HEREUNDER ARE SOLELY A CONDUIT FOR ANY CLIENT DATA. THE PARTIES AGREE THAT, AS BETWEEN CLIENT AND HEALTH HERE, CLIENT IS RESPONSIBLE FOR THE ACCURACY AND QUALITY OF CLIENT DATA AS INPUT INTO THE SERVICES. HEALTH HERE SHALL HAVE NO LIABILITY FOR ANY CLAIM ARISING FROM ANY USE OF SUCH CLIENT DATA OR RESULTS OF USING SUCH CLIENT DATA IN EACH CASE AS INPUT INTO THE SERVICES, INCLUDING WITHOUT LIMITATION ANY ACT OR OMISSION OF CLIENT AS A RESULT OF OR WITH RESPECT THERETO. HEALTH HERE EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO THE USE OR TRANSMISSION OF CLIENT DATA THROUGH THE SERVICES EXCEPT TO THE EXTENT OF ANY ERRORS OR OMISSIONS INTRODUCED THEREIN BY ANY FAULT IN THE SERVICES.
III. Limitation of Liability.
A. EXCEPT FOR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR A PARTY’S INDEMNIFICATION
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE,
OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS,
LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT OR ANY OTHER SERVICES PROVIDED BY HEALTH HERE UNDER OR IN CONNECTION WITH
THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT, STRICT LIABILITY, AND EVEN IF A PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES; AND
THE ENTIRE LIABILITY OF EACH PARTY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE
LIMITED TO THE TOTAL AMOUNT OF ALL FEES PAID BY CLIENT TO HEALTH HERE IN THE TWELVE (12)
MONTHS PRECEDING THE INCIDENT GIVING RISE TO A CLAIM OF LIABILITY.
B. NOTWITHSTANDING SECTION III.A OR ANY OTHER PROVISION OF THIS AGREEMENT THE CONTRARY, IN NO EVENT SHALL THE AGGREGATE LIABILITY FOR ANY DAMAGES WHATSOEVER OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH BREACHES OF CONFIDENTIALITY OBLIGATIONS HEREIN OR BREACH UNDER THE BAA, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EXCEED AN AMOUNT EQUAL TO ONE MILLION DOLLARS ($1,000,000 USD).
The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose. The allocation of risks between the parties and the limitations on liability are specifically intended by the parties as part of their bargain (i.e., part of the consideration for their other respective benefits and obligations) in this Agreement. The parties expressly acknowledge that they have negotiated, with the advice of legal counsel, such allocation and limitations.
Client agrees to defend, indemnify and hold Health Here harmless for any damages or losses incurred, as well as any cost incident to litigation, including reasonable attorneys’ fees and expenses, as a result of Client’s breach of this Agreement. Health Here agrees to defend, indemnify, and hold Client harmless for any damages or losses incurred, as well as any cost incident to litigation, including reasonable attorneys’ fees and expenses, by Client arising out of any claim by a third party (i) that the Platform Services misappropriate or infringe such third party’s patents, trade secrets, copyrights, trademarks or other intellectual property rights, or (ii) that it has been damaged as a result of the gross negligence or willful misconduct of Health Here or its employees or agents.
A. Definition. “Confidential Information” means information concerning the business of the other party and/or its affiliates, whether or not reduced to writing, including without limitation the terms of this Agreement, the payment terms set forth on Exhibit A of this Agreement and as may be modified from time to time, information pertaining to developments, techniques, data, know-how, methodology, formulations, benchmarks, research, processes, technology, designs, materials, ideas, plans, trade secrets, customers, proprietary information, accounting data, and other information relating to the business of the other party. Without limiting anything herein, the parties acknowledge and agree that the Platform Services are Confidential Information of Health Here, and any Client Data collected, stored, submitted, or inputted by Client into or otherwise processed or recorded through the Platform Services are Confidential Information of Client.
B. Each party acknowledges that the Confidential Information of the other is confidential and proprietary and agrees not to disclose such Confidential Information to anyone other than employees of the receiving party who have a need to know such information. In addition, the receiving party agrees that it shall not, without the prior written consent of the disclosing party, use the Confidential Information for any purpose other than to fulfill its obligations under this Agreement. Each party shall protect the Confidential Information of the other at least to the same extent it protects its own similar information, but in no event using less than reasonable care. The parties’ obligations of confidentiality shall not apply to: (i) information which is obtained from a third party that did not make a disclosure in violation of a nondisclosure obligation; (ii) information which is in the public domain not as a result of action by the receiving party; or (iii) to the extent disclosure is required by law or court order; provided, however, that in the event of any such required disclosure, the receiving party shall provide the disclosing party with prompt written notice thereof and shall cooperate with the disclosing party in any attempt to quash, limit or otherwise prevent or limit disclosure. For avoidance of doubt, Health Here shall have the right to use Client Data provided in connection with this Agreement as necessary to provide the Platform Services and as otherwise permitted by this Agreement and the BAA (as defined in this Agreement) and shall exclusively own all insights or new data created or derived by Health Here therefrom (subject to Health Here’s obligations with respect to such Client Data hereunder and under the BAA).
C. Remedies. Each party acknowledges that a breach of this Section V would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, the parties agree that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party shall have the right to obtain immediate injunctive relief in the event of a breach of this Section V by the other party or any of its officers, employees, consultants or other agents without the posting of a bond.
Any communication required or otherwise provided under this Agreement shall be in writing and shall be deemed received and effective (i) upon delivery if by hand; (ii) on the date of receipt or refusal of receipt if sent by certified United States mail, postage prepaid, return receipt requested; (iii) on the first business day following deposit if by a nationally recognized overnight courier; or (iv.) upon recipient’s emailed acknowledgment if by electronic mail. The sender will address all notices, requests, demands, or other communications to the party as set forth below, or at a different address as a party has notified the other party in writing:
For Health Here:
Health Here, Inc.
Attn: Ryan Wells
818 18 th Ave South, Nashville, Tennessee 37203
As noted on Client’s Platform account
Health Here shall maintain, during the Term of this Agreement, with companies rated A.M. Best “A-” or stronger and licensed in all states applicable to this Agreement, (i) Worker’s Compensation insurance in accordance with the laws of the governmental bodies having jurisdiction; (ii) general liability insurance in amounts not less than $1,000,000 per occurrence and $2,000,000 annual aggregate; and (iii) errors and omissions insurance, including information technology/internet liability, media liability, and system security/privacy liability, with coverage limits not less than $1,000,000 per occurrence and $2,000,000 annual aggregate. All insurance policies required herein shall: (i) name Client as an additional insured (except for any Worker’s Compensation policy); and (ii) contain an endorsement stipulating that Health Here’s policies are primary to and not contributory with any other policies affording coverage to Health Here, Client and all other named insureds, including any self-insurance retention maintained by Client.
A. Relationship of the Parties. It is understood that in the performance of the Platform Services hereunder, Health Here, its employees and agents are independent contractors with respect to Client, and nothing contained herein is intended, nor shall it be construed as, creating an employer-employee relationship, partnership, joint venture, agency, or any other similar relationship between the parties hereto. Neither party is authorized to waive any right, or assume or create any contract or obligation of any kind in the name of or on behalf of the other or to make any statement that it has the authority to do so.
B. No Waiver. Except as the parties otherwise may expressly agree in writing, no failure, refusal, neglect, delay, waiver, forbearance or omission by either party to exercise any right(s) under this Agreement or to insist upon full compliance by the other party of its duties, obligations or restrictions hereunder shall constitute a novation or a waiver of any provision(s) of this Agreement or otherwise thereafter limit such party’s right to fully enforce any or all of the provision(s) and part(s) thereof.
C. Severability. The provisions of this Agreement shall be deemed severable. If any part of this Agreement shall be held unenforceable by any court of competent jurisdiction, the remainder shall remain in full force and effect, and such unenforceable provision shall be reformed by such court so as to give maximum legal effect to the intention of the parties as expressed therein.
D. Governing Law. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of Tennessee without regard to conflicts of laws principles, and each party irrevocably consents to the exclusive jurisdiction of the federal and state courts for Davidson County, Tennessee, in connection with any action arising under this Agreement. Each party waives any right it may have to initiate, transfer or change the venue of any litigation brought against it by the other party. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s proprietary rights.
E. Assignment. Neither party may assign or transfer any of its rights hereunder without the prior written consent of the other party; provided, that either party may assign or transfer this Agreement without the other party’s consent if (i) to an Affiliate or (ii) pursuant to a merger, change of control, reorganization, or sale of all or substantially all assets or business. Any assignment or transfer in contravention of this Section shall be null and void.
F. Access to Books and Records. If this Agreement is one to which 42 C.F.R. Subpart D, sections 420.300-304 applies, Health Here shall, upon written request and until the expiration of four (4) years after the Platform Services are furnished, make available to the Secretary of the Department of Health and Human Services, the Comptroller General of the United States, and their duly authorized representatives books, documents and records necessary to verify the nature and extent of the cost of providing the Platform Services. If any subcontract entered into by Health Here is subject to 42 C.F.R. Subpart D, sections 420.300-304, such subcontract shall contain a clause to the same effect as this Section VIII.F.