Terms of Use
Last updated: September 4, 2023
These Terms of Use (the “Terms”), together with the other documents referenced and linked below (collectively, the “Agreement”), constitute a legally binding agreement between you and WELL Digital Health Apps Inc. its subsidiaries and affiliates (collectively, “WELL”) regarding your rights and responsibilities as a user (“User”) of the website (the “Site”) and the WELL AI Voice Application (the “Application”). In this Agreement, the terms “we”, “our” and “us” refer to WELL and the terms “you” and “your” refers to a User.
Your visit to the Site or use of the Application constitutes your acceptance of the Agreement. Our privacy policy (“Privacy Policy”) is incorporated by reference into the Terms. Please review it as well.
If you do not agree with some or all of these terms, do not access or use the Site.
1. Use and Accuracy of Information
The Site is provided for general information only. Although WELL uses reasonable commercial efforts to ensure that the information contained on the Site is accurate, WELL does not warrant or make any representation regarding the accuracy or completeness of any information or data provided on the Site.
2. Use of the Application (WELL AI Voice)
Your use of the Application is governed by the terms of service appended to as Schedule A. If you enter into a separate written agreement or contract with respect to the Application, in the event of conflict, the other agreement’s terms and conditions shall prevail.
3. Privacy Policy and other policies
You understand and acknowledge that your use of the Site is also governed by our Privacy Policy, which you have read and understand, and to which you agree. You consent to the collection, use and disclosure of your personal information by us and/or third-parties in accordance with the terms of and for the purposes set forth in our Privacy Policy. In addition, you also agree that your use of the Site will also be subject to such other policies and procedures as may be conveyed to you by us from time to time.
4. Ownership
Any use of any of the Materials (as defined below), whether in whole or in part, is strictly prohibited, except only and to the limited extent expressly permitted above.
These Terms provide only a limited license to access and use the Site. Accordingly, WELL does not transfer any ownership or intellectual property interest or title in and to the Site to you or anyone else in connection with your use of the Site. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Site (collectively, the “Materials”) are exclusively owned, controlled, or licensed by WELL. WELL and all other names, logos, marks, and icons identifying WELL and its products, or services are owned exclusively by WELL, and any use of such marks without the prior express written permission of WELL is hereby expressly prohibited. Other trademarks or service marks identified on or through the Site may be the trademarks or service marks of third parties. No part of the Site will be construed as granting any license or right to use any trademarks (whether by implication or otherwise), including our trademarks, except with our express written permission or such other party that may be the owner thereof. The Materials may be protected under copyright, trademark and other laws of Canada and other countries, and WELL owns all copyright in the selection, co-ordination, arrangement and enhancement of the Materials. Any use of any of the Materials (whether in whole or in part) is strictly prohibited, except only and to the limited extent expressly permitted above.
5. Submissions
For any content that you submit on the Site, e-mail or any social media platform, you grant WELL a, perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such content and/or incorporate such content into any form, medium or technology throughout the world without compensation to you.
All content that you submit on or through the Site (or any social media platform) may be used at WELL’s sole discretion. WELL reserves the right to change, condense or delete any content on the Site (or any social media platform) that WELL deems, in its sole discretion, to violate any provision of these Terms. WELL reserves the right to remove or to refuse to post any submission for any reason. You acknowledge that you, not WELL, are responsible for the contents of your submission. None of the content that you submit shall be subject to any obligation of confidence on the part of WELL, its agents, subsidiaries, affiliates, partners, App Providers or third-party service providers and their respective directors, officers and employees.
By submitting content to the Site or through social media, you represent and warrant that you are the sole author and owner of the intellectual property rights in the content and that you waive all moral rights in such content. You must not submit, publish or otherwise disseminate to WELL or through the Site (or a social media platform) anything which: (a) defames, libels or invades the privacy of any person; (b) is obscene, pornographic, abusive or threatening; (c) infringes on any intellectual property or other rights of any person or entity; (d) has contaminating or destructive properties (i.e. software viruses); (e) violates any law; (f) advocates or describes any illegal activity; or (g) advertises or solicits funds for goods or services. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any such information or materials. We may enforce our rights to the fullest extent of the law should you breach any of these terms and conditions.
6. Links
The Site may contain links to other web sites. These links are provided solely as a convenience to you and the inclusion of any link does not imply endorsement, investigation or verification by WELL of the linked web site or information contained therein. Your use of such sites and your dealings with the owners or operators thereof, including the App Providers, are at your own risk.
7. Errors and Inaccuracies; Corrections
The Site may contain typographical errors or inaccuracies and may not be complete or current. We therefore reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior or any notice to you.
The Site and the Materials are provided “as is”, “where is”, “as available”, without representations or warranties of any kind by WELL. TO THE FULL EXTENT PERMITTED BY LAW, WELL AND ALL DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF WELL DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE AND THE MATERIALS WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OR ARISING BY COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE OR USE. Without limiting the foregoing, we do not represent or warrant that the Site and the Materials are accurate, complete, reliable, useful, timely or current or that the Site will operate without interruption or error. We assume no responsibility, and are not liable for, any damages to your computer equipment, data or other property on account of your access to, use of, or browsing on the Site, or inability to do any of the foregoing.
8. Limitation of Liability
Your use of the Site and the Materials is undertaken at your own risk. Under no circumstances will WELL or any directors, officers, employees, agents, contractors and suppliers of WELL, be liable for any direct, incidental, consequential, indirect, or punitive damages arising out of your access to or use of the Site and the Materials, your reliance on the Site and the Materials or any consequences flowing therefrom. WELL is not responsible for late, lost, incomplete, illegible, misdirected or stolen messages, unavailable network connections, failed, incomplete, garbled or delayed computer transmissions, on-line failures, hardware, software or other technical malfunctions or disturbances or any other communications failures or circumstances affecting, disrupting or corrupting communications. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME OR PROFITS OR FAILURE TO REALIZE ANTICIPATED BENEFITS), WHETHER BASED IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
If you are dissatisfied with the Site, the Materials or with this Agreement, your sole and exclusive remedy is to discontinue using the Site or the Materials, as applicable.
9. Indemnification
You agree to indemnify and save harmless WELL and all directors, officers, employees, agents, contractors and suppliers of WELL (in this section, “we” and “us”) from and against any claim, cause of action, demand, cost, loss, expense or liability (including without limitation reasonable professional fees) brought against or suffered or incurred by us as a result of your use of the Site or the Materials or your breach of this Agreement. When we are threatened with suit or sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide those assurances may be considered by us to be a material breach of this Agreement. In addition, in the event we are made a party to any claim, suit or action relating to or arising from any services offered by us that is: (a) initiated by you, which is unsuccessful; or (b) initiated by a third party, who is suing you; you will reimburse us at a reasonable rate for all personnel time and expenses expended by us in response to such claim, suit or action including without limitation, all attorney fees and expenses incurred by us with respect to such response. This defence and indemnification obligation will survive termination of this Agreement and your cessation of use of the Site.
10. Governing Law and Courts
This Agreement and your use of the Site will be governed by and interpreted exclusively in accordance with the laws of the Province of British Columbia, and the federal laws of Canada applicable in British Columbia, excluding its conflict of laws rules and all private international laws. You further agree that despite being available from a variety of jurisdictions, the Site will be deemed solely based in the Province of British Columbia, Canada; and that the Site will be deemed to be passive in nature and not giving rise to personal jurisdiction over WELL in jurisdictions other than the Province of British Columbia. You consent and submit to the exclusive jurisdiction of the Courts located in the Province of British Columbia in all disputes arising out of or relating to your use of or inability to use the Site or this Agreement. However, you agree that nothing herein precludes WELL’s application for injunctive remedies or other urgent legal relief in any jurisdiction.
11. Severability; Waiver
The terms of this Agreement are severable. If any provision of this Agreement is determined to be unenforceable or invalid, then such provision will be enforced to the fullest extent permitted by applicable law, and such determination will not affect the validity and enforceability of any other remaining provisions. No consent or waiver by either party to or of any breach or default by the other party in its performance of its obligations under this Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that party. No consent or waiver will be effective unless in writing and signed by both parties.
12. Survival
The provisions which by their nature are intended to survive termination, shall survive termination, howsoever occasioned.
13. Non-Assignment
This Agreement is between you and WELL and is not assignable or transferable expect with the express written consent of WELL, which may be unreasonably withheld. WELL may assign or transfer any of its rights or obligations within this Agreement without your consent.
14. Force Majeure
We will not be liable or responsible to you, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in our performance under this Agreement, when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, pandemic, earthquake, tsunami, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.
15. Entire Agreement
This Agreement, together with those documents incorporated or referred to herein, constitute the entire agreement between you and us relating to your use of the Site and the Materials (other than Apps offered by WELL which may be subject to additional or separate terms), and supersedes any prior understandings or agreements (whether electronic, oral or written) regarding the subject matter, and cannot be amended or modified except by our express and explicit agreement to modify this Agreement in writing, or by us making such amendments or modifications available to you pursuant to a modification of this Agreement as permitted herein. In the event of a conflict between the provisions of the Terms and the provisions of any other document or agreement incorporated or referenced herein, these Terms will govern to the extent of the inconsistency. We reserve the right to unilaterally update or modify (collectively “change”) this Agreement at any time and from time to time, effective as of the date of the change and apply to your use of the Site. We will notify you of any changes to this Agreement by posting notice of such changes on the Site, but you should also periodically review this Agreement as you use the Site. You agree that we have this right, and that your continued use of the Site following notice of such change means that you agree to and accept the amendments.
Questions about the Site, or regarding your rights and responsibilities under this Agreement, can be directed privacy@well.company.
Schedule A: Terms of Service – WELL AI Voice
This is a legal agreement between you (the user of the AI Voice Application) and WELL Digital Health Apps Inc. (the corporation providing the voice-enabled artificial intelligence powered application).
These Agreement cover 3 important concepts:
1. What you can expect from WELL
2. What we expect from you
3. Consent to use your (and your patient’s) information
If you do not agree (or your patient does not agree) to anything stated here, you must not use the Application.
1. What you can expect from us
WELL will provide you with a state-of-the-art natural language processing language model to help reduce the time you spend on documentation and administrative tasks so that you can focus on patient care. While we are confident in the services offered by the Application, it is important for you to review the accuracy of the information returned to you by the Application.
WELL will only collect the information you provide to it. We will not access your electronic medical record (unless you direct us to). Information collected by the Application will be stored and processed in Canada and the United States.
All information collected by the Application will be saved. Some excerpts of such information which do not contain identifiable information may be used in the future to further train and develop the Application.
WELL will protect all information it collects through administrative, physical, and technical security features.
2. What we expect from you
WELL relies on you (the healthcare practitioner) to inform patients how you use the Application and how it works.
You must obtain the patient’s consent for their voice to be recorded by the Application and for their information to be collected and used by WELL to run the Application.
By using the Application, you represent that you and your patient have consented to the collection and use of personal information for future refinement of the Application.
We cannot collect the consent for you since we do not have a relationship with your patients.
3. Consent to use your (and your patient’s) information
The Application may record both your and your patient’s voice, which is biometric data (ie personal information). WELL does this to make text transcripts of the appointment, which are then used to run the Application. This means that if personal information is disclosed during the appointment, WELL will have a copy of such information within the transcript. WELL keeps all such information for record keeping purposes and to further improve the Application.
Please refer to the content of the Agreement below for more detail. If there is any conflict with the Terms of Service or WELL’s Privacy Policy with any information contained in this summary, the terms of the Terms of Service and Privacy Policy shall prevail.
WELL Digital Health Apps Inc. (“Provider”) provides a platform and application program interface (API) on a software as a service and platform as a service basis (“Service”, as further defined below). The Service is provided on a subscription basis as further described in this Agreement and on the Provider’s website under specific subscription plans offered by Provider from time to time.
The Services are provided through browser extension or a desktop application made available to you. This Agreement applies to anyone (“You”/”Customer”) who subscribes for or otherwise uses the Services.
THESE TERMS CONTAIN IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES. ACCORDINGLY, YOU SHOULD READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES.
BY USING THE SERVICE, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE PROVIDER’S WEBSITE OR ANY OF ITS CONTENT OR SERVICES
1. Provision of Service.
1. Provision Generally. Subject to your acceptance of this Agreement and your payment of all fees due and owing to Provider, during the Subscription Term (as defined in Section 5.1) Provider will provide Customer with access to Provider’s analytics platform and Provider’s application program interface (API) (collectively, the “Service”) facilitating Customer AI dictation, appointment summary generation and drug monograph lookup in accordance with the terms and conditions of this Agreement. In order to access and use the Service, Customer is responsible at its own expense for obtaining its own Internet access and any hardware and software required therefor. Customer’s right to use the Service during the Subscription Term shall be subject to and in accordance with any additional conditions, restrictions or parameters specified in this Agreement.
2. Grant of Rights. Subject to the terms and conditions of this Agreement, Provider hereby grants to Customer a limited, royalty-free, non-exclusive, non-sublicensable, non-transferable (except for permitted assignments as hereinafter described) right to access and use the Service in accordance with this Agreement, subject to the terms and conditions of approved Services plan and solely for Customer’s internal business purposes during the Subscription Term. All rights not expressly granted to Customer are reserved by Provider and its licensors. There are no implied rights.
3. Eligibility Requirements. By entering into this Agreement, Customer represents, warrants and covenants that Customer meets the following minimum requirements (“Eligibility Requirements”): (a) Customer has the necessary rights and authority to enter into and perform the obligations under this Agreement and consents to have their personal information used by Provider; (b) the Customer Data (as defined herein) is accurate, complete and current; (c) Customer’s use of the Service and collection of Appointment Data (as defined herein) will comply with all applicable laws and regulations, and specifically, Customer has obtained the explicit consent of their patients for the patient’s personal information (including their personal health information, the “Patient Data”) to be collected, used and disclosed to Provider as part of the Service and for Provider to collect and use the Patient Data to develop improvements to the Services; and (d) Customer will not infringe the rights of any third party (including without limitation any intellectual property rights or privacy rights) in its use of the Service. Customer has informed (or covenants to inform) all End Users of the Eligibility Requirements and shall not permit any End User to use the Service unless they agree to the Eligibility Requirements. Customer acknowledges that Provider is relying on Customer to ensure all End Users satisfy the Eligibility Requirements.
4. Restrictions. Customer shall not (and shall not allow any third party to): (a) access or use the Service except as envisioned by the Service in its normal operation or specified herein; (b) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code) associated with the Service; (c) use any unauthorized robot, spider, scraper or other automated means to access the Service, or engage in any scraping, data-mining, harvesting, data aggregating or indexing of the Service except to have copy of Customer Data and Appointment Data (d) frame or mirror any content forming part of the Service; or (e) access the Service in order to build a competitive product or service, or (f) copy any ideas, features, functions or graphics of the Service. Customer shall keep all passwords and API keys provided to it safe and secure and shall be responsible for all use of the Service using passwords or API keys issued to Customer. Customer shall notify Provider immediately of any actual or suspected unauthorized use of its passwords or API keys for the Service. Without limiting any of its other rights or remedies, Provider reserves the right to suspend access to the Service if Provider reasonably believes that Customer has materially violated the restrictions and obligations in this Agreement after providing Customer written notice remained ineffective within 15 days. The Service may not be accessed or used by any national or resident of a country embargoed by the United States or Canada including countries sanctioned by the Office of Foreign Assets Control (OFAC) or the Financial Action Task Force (FATF). By accessing or using the Service, Customer is representing and warranting that Customer is not located in, under the control of, or are a national or resident of any country to which the use of the Service would be prohibited by the laws of Canada or the United States or the laws of the country or jurisdiction in which they are currently residing in or subject to.
5. Customer Cooperation. Customer shall: (a) reasonably cooperate with Provider in all matters relating to the Service; (b) respond promptly to any Provider request to provide information, approvals, authorizations or decisions that are reasonably necessary for Provider to provide the Service in accordance with this Agreement; and (c) provide such Customer materials or information as Provider may reasonably request to provide the Service and ensure that such materials or information are complete and accurate in all material respects.
2. Provider Technology.
In connection with providing the Service, Provider and its licensors shall operate and support the hosted environment used by Provider to provide the Service, including the Provider Technology (as defined below), the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other technology or information so used by Provider. As used herein, “Provider Technology” means all of Provider’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Provider in providing the Service, including any and all updates, modifications, improvements and derivatives thereto and thereof.
3. Ownership.
1. Customer acknowledges and agrees that Provider shall retain a copy of all information collected by the Provider Technology during a patient appointment when Customer uses the Service, including Customer’s personal information and Patient Data (the “Appointment Data”). All Appointment Data shall be used by Provider to provide the Service and to improve/refine the Service. Customer hereby assigns and conveys all right, title and interest in the Appointment Data to Provider, including all consents obtained by Customer for Provider to use Appointment Data for improvements to the Services, and hereby consents to Customer’s own personal information contained in the Appointment Data to be collected and used by Provider for future improvements to the Services.
2. No right or license is granted hereunder to Customer under any trademarks, service marks, trade names or logos. Customer shall not remove any Provider trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Service. Customer acknowledges and agrees that, as between Provider and Customer, all right, title and interest in and to the Service (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content on or made available through the Service, the Provider Technology and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Provider or its licensors, and this Agreement in no way conveys any right, title or interest in the Service or the Provider Technology other than a limited right to use the Service in accordance with this Agreement.
4. Fees; Payments; Taxes.
1. Fees. Customers with paid subscriptions will provide Provider (or its third-party payment service provider) with a valid credit card for payment of the applicable subscription fees, or (if applicable) will duly pay invoices issued to such Customers on the payment and other terms set forth in such invoices. In addition to any fees, the Customer may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges. No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Customer. There are no charges for cancelling a subscription and paying subscriptions cancelled prior to the end of their current billing cycle will not be charged again in the following cycle.
2. Increases. Provider reserves the right to increase its fees upon at least 30 days’ advance notice (e-mail or otherwise) to Customer; provided, however, that fee increases will not take effect until the start of the next Subscription Term.
3. Taxes. All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Service, or Customer’s access to the Service. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Provider’s income), which may be invoiced by Provider from time-to-time. In the event of updated tax rates, Provider will apply the new tax rate without notice to the Customer.
4. Withholdings. Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If the Customer is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Provider receives an amount equal to the sum it would have received had no such deduction or withholding been made.
5. Term & Termination.
1. Term, Termination and Automatic Renewal. Customer is solely responsible for cancelling subscriptions. Customer may cancel their subscription at any time by providing written notice to the Provider. After the initial subscription term, this term of the subscription shall be deemed renewed automatically at the end of the term, for the same term, until the Service is cancelled in accordance herewith.
2. Termination for Breach. Provider in its sole discretion has the right to suspend or discontinue providing the Service to Customer without notice for actions that are in material violation of this Agreement.
3. Termination for convenience. Where the Service is provided to Customer on a “free” basis, Provider reserves the right to terminate this Agreement at any time, with or without notice to Customer.
4. Effects of Subscription Termination; Survival. Upon any termination of this Agreement: (a) all rights granted to Customer hereunder shall terminate and Provider shall no longer provide access to the Service to Customer, and (b) Customer shall cease using the Service. Any obligations that have accrued prior to termination shall survive termination of this Agreement. In addition, the following Sections, as well as any other provisions herein which by their nature should survive, shall survive termination of this Agreement: Sections 3-10.
6. Customer Data and Patient Data.
1. Data Generally. All account and billing information, and all data and information which the Customer, or its “End Users” (permitted users being Customer’s employees, contractors, agents, and any other person who Customer permits to use its instance of the Service) inputs into the Service (collectively, “Customer Data”) will be used by Provider as set out herein. Provider agrees to protect Customer Data and Appointment Data with no less than industry-standard information security tools and procedures. Provider may analyze Customer Data and Appointment Data to create aggregated and anonymized statistics or data and Provider may use and disclose such statistics or data in its discretion. Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. Provider shall operate the Service in a manner that provides reasonable information security for Customer Data and Appointment Data, using commercially reasonable data backup, security, and recovery protections.
2. Additional Customer Responsibilities. Customer is solely responsible for all Customer Data that they, or End Users, upload on the Provider’s platform as part of the Service. Provider does not guarantee the accuracy, integrity or quality of Customer Data. Customer shall not upload or otherwise make available to Provider any Customer Data that: (a) constitutes an infringement, misappropriation, or violation of all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information, or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights; (b) violates this Agreement, including, without limitation, the Privacy Policy or any applicable laws, rules, or regulations; (c) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, sexually explicit, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual, promotes illegal activities or contributes to the creation of weapons, illegal materials, or is otherwise objectionable or illegal in any way; (d) contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of any computer software or hardware or telecommunications equipment; (e) interferes with or disrupts the Service or servers or networks connected to the Service; (f) is harmful to minors in any way; (g) constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (h) causes Provider to violate any applicable law, rule or regulation, including those regarding the export of technical data, or (i) they have not obtained consent for as required by privacy law from the patient to have their personal information transferred to Provider and used by Provider to provide and improve the Services. Provider reserves the right, but has no obligation, to review any Customer Data or Appointment Data, investigate any claim related to Customer Data or Appointment Data, or take appropriate action, in its sole discretion, against the person (Customer or End Users) at the origin of the content that creates any liability for Provider. Such actions may include removing, exercising any indemnity and termination rights contained herein, and reporting such Customer Data or Appointment Data to law enforcement authorities.
3. Appointment Data. All Customer Data and Appointment Data, shall be processed in accordance with the Provider’s Privacy Policy. For clarity, all Appointment Data (which includes Patient Data and some of Customer’s personal information (such as the Customer’s voice)) shall be used by Provider to improve the Provider Technology and Service.
7. Warranty Disclaimer.
1. Disclaimer. THE SERVICES ARE PROVIDED ON AN “AS –IS” BASIS, AND, PROVIDER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT (SUBJECT TO THE PROVISIONS OF ARTICLE 9), (B) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED), TIMELY, OR OPERATE WITHOUT ERROR, (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR (D) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE. THE CUSTOMER ACKNOWLEDGES THAT THEY ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL INFORMATION RETURNED BY THE SERVICES OR PROVIDER TECHNOLOGY.
2. Additional Disclaimer. CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS HOSTED BY A THIRD PARTY HOSTING PROVIDER (THE “HOSTING CONTRACTOR”) AND USES THIRD PARTY SERVER HARDWARE, DISK STORAGE, FIREWALL PROTECTION, SERVER OPERATING SYSTEMS, MANAGEMENT PROGRAMS, WEB SERVER PROGRAMS FOR DELIVERY OF THE SERVICE (THE “HOSTING CONTRACTOR SERVICES”). ADDITIONALLY, PROVIDER USES THIRD PARTIES TO HELP RECEIVE PAYMENTS (“PAYMENT PROCESSOR”) AND PROVIDE CERTAIN LANGUAGE PROCESSING SERVICES (“AI PROVIDER”). PROVIDER MAY CHANGE ITS HOSTING CONTRACTOR, AI PROVIDER, OR PAYMENT PROCESSOR AT ANY TIME. CUSTOMER’S USE OF THE SERVICE IS SUBJECT TO ANY RESTRICTIONS IMPOSED BY THE HOSTING CONTRACTOR, AI PROVIDER AND THE PAYMENT PROCESSOR, AS APPLICABLE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, PROVIDER SHALL NOT BE LIABLE FOR ANY PROBLEMS, FAILURES, DEFECTS OR ERRORS WITH THE SERVICE TO THE EXTENT CAUSED BY THE HOSTING CONTRACTOR, AI PROVIDER, OR PAYMENT PROCESSOR. CUSTOMER ACKNOWLEDGES THAT THE FEES PAYABLE FOR THE SERVICE REFLECT THE FACT THAT PROVIDER IS NOT RESPONSIBLE FOR THE ACTS AND OMISSIONS OF THE HOSTING CONTRACTOR, AI PROVIDER, OR PAYMENT PROCESSOR, AND THAT PROVIDER COULD NOT AFFORD TO PROVIDE THE SERVICE AT THE PRICES OFFERED IF IT WERE RESPONSIBLE FOR THE ACTS OR OMISSIONS OF THE HOSTING CONTRACTOR, AI PROVIDER, OR PAYMENT PROCESSOR.
8. Limitations of Liability.
1. Disclaimer of Indirect Damages. EXCEPT FOR CUSTOMER’S (A) OBLIGATION TO PAY ALL AMOUNTS DUE HEREUNDER; (B) INDEMNIFICATION OBLIGATIONS; AND (C) BREACH OF ANY INTELLECTUAL PROPERTY OR CONFIDENTIALITY OBLIGATIONS OR RESTRICTIONS HEREIN (INCLUDING ANY LIMITATIONS OR RESTRICTIONS ON USE OF THE SERVICE), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA, PROFITS OR REVENUE) ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
2. Damages Cap. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, PROVIDER’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO PROVIDER DURING THE THEN-CURRENT SUBSCRIPTION TERM WHATEVER THE MOMENT OF THE THEN-CURRENT PERIOD (EXCLUDING NON-INFRINGEMENT AND CLAIM RELATED TO DATA PROTECTION).
3. Basis of the Bargain. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT PROVIDER HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
9. Indemnification.
1. Provider Indemnification. Provider shall defend, indemnify and hold harmless Customer and its directors, officers, and employees (“Customer Indemnified Parties”) from and against any third-party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent the Service infringes, misappropriates or otherwise violates (collectively, “Infringes”) any third-party intellectual property or proprietary rights.
2. Customer Indemnification. Customer shall defend, indemnify and hold harmless Provider and its directors, officers, employees, agents and providers (“Provider Indemnified Parties”) from: (i) any Claim based on a breach of the Eligibility Requirements, (ii) any loss incurred by Provider as a result of the use of the Service in a way that violates the restrictions set out in Section 1.4 of this Agreement; (iii) any Claim based on the use or disclosure of Customer Data (including for failure to obtain consent); and (iv) any Claim from an End User in relation to their use of the Service.
3. Indemnification Process. As conditions of the indemnification obligations in Sections 9.1-9.2 above: (a) the applicable Customer Indemnified Party or Provider Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby), (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim, and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party (not unreasonably withheld).
4. Exclusions. Provider’s obligations in Section 9.1 above shall not apply to any Claim to the extent arising from or relating to (a) misuse of the Service not strictly in accordance with the documentation therefor, Provider’s instructions, or this Agreement; (b) any modification, alteration or conversion of the Service not created or approved in writing by Provider; (c) any combination of the Service with any computer, hardware, software or service not provided by Provider; (d) Provider’s compliance with specifications or other requirements of Customer; or (e) any third party data, Appointment Data or Customer Data. If the Service is or may be subject to a Claim of Infringement described in Section 9.1 above, Provider may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Service as contemplated herein; (ii) replace or modify the Service so that it becomes non-Infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Customer any pre-paid fees for the Service associated with the then-current Subscription Term. Provider’s obligations in this Section 9 shall be Provider’s sole obligations, and Customer’s sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Service.
10. Confidentiality.
1. Definitions. “Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Subscription Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including without limitation information (tangible or intangible) regarding a Party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; (ii) the Service and Provider Technology shall be deemed Confidential Information of Provider, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential; and (iii) Customer Data shall be deemed Confidential Information of Customer.
2. General Obligations. Each Party agrees that it will (a) not disclose the other Party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 10; and (d) protect all Confidential Information of the other Party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by applicable law, rule or regulation (including a court order or other government order); provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; or (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirers; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 10 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable).
3. Return or Destruction. Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination of this Agreement; provided that (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, (b) Receiving Party may retain copies of Disclosing Party’s Confidential Information solely to the extent required by law or by applicable professional standards which require such Party to retain copies of its working papers, and (c) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination. For clarity, Provider shall not be required to delete, destroy, or erase any Customer Data or Appointment Data upon termination of this Agreement.
4. Feedback. Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides Provider with any feedback or suggestions regarding the Service, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Customer, and Provider may use, disclose and exploit the Feedback in any manner it chooses without any obligation to Customer. All Feedback provided by Customer is provided “AS IS” and without warranty or representation of any kind.
11. Miscellaneous.
1. End Users. Customer shall ensure that all End Users comply with the requirements, restrictions and obligations of Customer as set out in this Agreement. For clarity, any obligation or responsibility of Customer (such as the requirement for Customer to obtain consent of their patient) shall also apply mutatis mutandis to the End Users. Use of the Service by an End User shall be considered irrevocable proof that Customer has explained the terms set out herein and that End User has consented to such terms.
2. Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by either Party without the prior written consent of the other Party (not to be unreasonably withheld or delayed), except that either Party may assign or transfer this Agreement without the other Party’s consent (i) to any of its affiliates, or (b) upon a change of control of a party, a sale of all or substantially all assets of that party, or by operation of law. Customer understands and agrees that, in the event its assignment of the Agreement results in a material change in Service usage, Provider may require a renegotiation of Service pricing.
3. Entire Agreement; Precedence; Amendment. This Agreement, along with the Provider’s privacy policy, contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto. Each Party hereby rejects the inclusion of any pre-printed terms and conditions on any purchase orders or other such contract documents. Provider reserves the right to amend this Agreement. In the event of material changes to the Agreement, Provider will notify Customers, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Service by the Customer after reasonable notice by Provider will be considered acceptance of any new terms.
4. Notices. Provider may give any notices issued in connection with this Agreement by email to Customer at the email address given by Customer when creating its account, and such notices shall be effective upon confirmation of transmission to Customer.
5. Force Majeure. Neither Party will be liable to the other Party for any failure or delay in performance by circumstances beyond its control, including, fire, labor difficulties, telecommunication failures, Internet unavailability, governmental actions or terrorism, provided that the Party seeking to rely on such circumstances gives written notice of such circumstances to the other Party and uses reasonable efforts to overcome such circumstances.
6. Choice of Law. Any question, claim or controversy arising out of or related to this Agreement (a “Dispute”) will be governed by and construed in accordance with the laws of the Province of British Columbia, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.
7. Disputes. In the event of any Dispute, the designated representatives of Customer and Provider shall promptly confer and exert their good faith efforts to reach a reasonable and equitable resolution of such Dispute. If such representatives are unable to resolve such Dispute within five business days, the Dispute shall be referred promptly to the responsible senior management of each Party for resolution. Neither Party shall seek any other means of resolving any Dispute until both Parties’ responsible senior management have had at least five business days to resolve the Dispute. If the Parties are unable to resolve the Dispute in accordance with the foregoing procedure, then either Party may, at any time, deliver notice to the other Party of its intent to submit the Dispute to the applicable courts of the Province of British Columbia, Canada, except for provision relating to personal data of the Agreement and the Data Processing Agreement which will be submitted to the jurisdiction prescribed from to time in the Data Processing Agreement.
8. Claims of Infringement. Provider respects Customer’s copyrights and other intellectual property rights and those of other third parties. If Customer believes in good faith that Customer’s copyrighted work has been reproduced on the Service without Customer’s authorization in a way that constitutes copyright infringement, Customer may notify us at privacy@well.company.
9. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
10. Waiver. No waiver by either Party of any of the provision of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11. Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court or tribunal of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
12. Interpretation. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes,” or “including” in this Agreement shall not be limiting and “or” shall not be exclusive.
