Service Agreement¶

Last Modified: January 1, 2023

1. SERVICES¶

Facilities; Data Transfer. All facilities used to store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Wellzesta stores and processes its own information of a similar type. Wellzesta has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Customer Data, protect against anticipated threats or hazards to the security or integrity of Customer Data and protect against unauthorized access to or use of Customer Data. As part of providing the Services, Wellzesta may transfer, store, and process Customer Data in the United States or any other country in which Wellzesta or its agents maintain facilities. By using the Services, Customer consents to this transfer, processing and storage of Customer Data.
License to Customer Data. Customer grants Wellzesta a non-exclusive, royalty-free, perpetual, irrevocable license to use, copy, store, transmit and display Customer Data to provide and maintain the Services and to otherwise exploit such Customer Data. You can find more information about how Wellzesta treats Customer Data in our terms of use.
Ads. Not withstanding any other term of the Agreement, Wellzesta may process Customer Data for Advertising purposes or serve personalized Advertising in the Services such as discounts for goods or services.
New Features or Services. Wellzesta may make new applications, features or functionality for the Services available from time to time, the use of which may be contingent upon Customer’s agreement to additional terms.
Verification to Use Services. Customer must verify a Domain Email Address or a Domain Name to use the Services. If Customer does not have valid permission to use the Domain Email Address or does not own or control the Domain Name, then Wellzesta will have no obligation to provide Customer with the Services.
Service Specific Terms. The service specific terms are incorporated by this reference into the Agreement.

2. MODIFICATIONS¶

To the Services. Wellzesta may make commercially reasonable changes to the Services from time to time. If Wellzesta makes a material change to the Services, Wellzesta will inform the Customer.
To URL Terms. Wellzesta may make commercially reasonable changes to the URL Terms from time to time. If Wellzesta makes a material change to the URL Terms, Wellzesta will inform Customer by either sending an email to the Notification Email Address or alerting Customer via the Admin Console. If the change has a material adverse impact on Customer, and Customer does not agree to the change, Customer must so notify Wellzesta through a method described in the Technical Support Services Guidelines within thirty days after receiving notice of the change. If Customer notifies Wellzesta as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Services Term for the affected Services. If the affected Services are renewed, they will be renewed under Wellzesta's then current URL Terms.

3. CUSTOMER OBLIGATIONS¶

Compliance. Customer will use the Services in accordance with the Acceptable Use Policy. Wellzesta may make new applications features or functionality for the Services available from time to time the use of which may be contingent upon Customer's agreement to additional terms. In addition, Wellzesta will make other Non-Wellzesta Apps Products (beyond the Services) available to Customer and its End Users in accordance with the Non-Wellzesta Apps Product Terms and the applicable product-specific Wellzesta terms of service. If Customer does not desire to enable any of the Non-Wellzesta Apps Products, Customer can enable or disable them at any time through the Admin Console.
Customer Administration of the Services. Customer may specify one or more Administrators through the Admin Console who will have the rights to access Admin Account(s) and to administer the End User Accounts. Customer is responsible for: (i) maintaining the confidentiality of the password and Admin Account(s); (ii) designating those individuals who are authorized to access the Admin Account(s); and (iii) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Agreement. Customer agrees that Wellzesta's responsibilities do not extend to the internal management or administration of the Services for Customer and that Wellzesta is merely a data-processor.
End User Consent. Customer's Administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts. Customer will obtain and maintain all required consents from End Users to allow: (i) Customer's access, monitoring, use and disclosure of this data and Wellzesta providing Customer with the ability to do so and (ii) Wellzesta to provide the Services.
Unauthorized Use. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services' and to terminate any unauthorized use. Customer will promptly notify Wellzesta of any unauthorized use of, or access to, the Services of which it becomes aware.
Restrictions on Use. Unless Wellzesta specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (i) sell, resell, lease or the functional equivalent, the Services to a third party (unless expressly authorized in this Agreement); (ii) attempt to reverse engineer the Services or any component; (iii) attempt to create a substitute or similar service through use of, or access to, the Services; (iv) use the Services for High Risk Activities; or (v) use the Services to store or transfer any Customer Data that is controlled for export under Export Control Laws; or (vi) use the Services to store or transfer any Customer Data that is controlled under HIPAA except as provided in the BAA.
Third Party Requests. Customer is responsible for responding to Third Party Requests. Wellzesta will, to the extent allowed by law and by the terms of the Third Party Request: (i) promptly notify Customer of its receipt of a Third Party Request; (ii) comply with Customer's reasonable requests regarding its efforts to oppose a Third Party Request; and (iii) provide Customer with the information or tools required for Customer to respond to the Third Party Request. Customer will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact Wellzesta only if it cannot reasonably obtain such information.

3. PAYMENT¶

Payment Terms are as defined in the MSA. If payment terms are not specified in the software subscription and professional services agreement, the payment terms are as follows:

Payment. All payments due are in U.S. dollars unless otherwise indicated on the Order Page or invoice. Payment not received within 30 days is considered delinquent.
Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Wellzesta in collecting such delinquent amounts, except where such delinquent amounts are due to Wellzesta’s billing inaccuracies.
Automatic Suspension. Customer will have thirty days to pay Wellzesta delinquent Fees. If Customer does not pay Wellzesta delinquent Fees within thirty days, Wellzesta will automatically suspend Customer’s use of the Services. The duration of this suspension will be until Customer pays Wellzesta all outstanding Fees.
Termination After Suspension. If Customer remains suspended for non-payment for more than sixty days, Wellzesta may terminate Customer for breach pursuant to Section 11.

4. TECHNICAL SUPPORT SERVICES¶

By Customer. Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to Customer's or End Users' use of the Services. Customer will use commercially reasonable efforts to resolve support issues before escalating them to Wellzesta.
By Wellzesta. If Customer cannot resolve a support issue consistent with the above, then Customer may escalate the issue to Wellzesta in accordance with the TSS Guidelines. Wellzesta will provide TSS to Customer in accordance with the TSS Guidelines.

5. SUSPENSION¶

Of End User Accounts by Wellzesta. If Wellzesta becomes aware of an End User's violation of the Agreement, then Wellzesta may specifically request that Customer Suspend the applicable End User Account. If Customer fails to comply with Wellzesta's request to Suspend an End User Account, then Wellzesta may do so. The duration of any Suspension by Wellzesta will be until the applicable End User has cured the breach which caused the Suspension.
Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Wellzesta may automatically Suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue. If Wellzesta Suspends an End User Account for any reason without prior notice to Customer, at Customer's request, Wellzesta will provide Customer the reason for the Suspension as soon as is reasonably possible.

6. CONFIDENTIAL INFORMATION¶

Obligations. Each party will: (i) protect the other party's Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (ii) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates' employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates' employees and agents in violation of this Section.
Exceptions. Confidential Information does not include information that: (i) the recipient of the Confidential Information already knew; (ii) becomes public through no fault of the recipient; (iii) was independently developed by the recipient; or (iv) was rightfully given to the recipient by another party.
Required Disclosure. Each party may disclose the other party's Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.

7. INTELLECTUAL PROPERTY RIGHTS; BRAND FEATURES¶

Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Wellzesta owns all Intellectual Property Rights in the Services.
Display of Brand Features. Wellzesta may display those Customer Brand Features authorized by Customer (such authorization is provided by Customer uploading its Brand Features into the Services) within designated areas of the Service Pages. Customer may specify the nature of this use using the Admin Console. Wellzesta may also display Wellzesta Brand Features on the Service Pages to indicate that the Services are provided by Wellzesta. Neither party may display or use the other party’s Brand Features beyond what is allowed in this Agreement without the other party’s prior written consent.
Brand Features Limitation. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights in those Brand Features. A party may revoke the other party's right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.

8. PUBLICITY¶

Customer agrees that Wellzesta may include Customer's name or Brand Features in a list of Wellzesta customers, online or in promotional materials. Customer also agrees that Wellzesta may verbally reference Customer as a customer of the Wellzesta products or services that are the subject of this Agreement. This section is subject to Section 7.3 (Brand Features Limitation).

9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS¶

Representations and Warranties. Each party represents that it has full power and authority to enter into the Agreement. Each party warrants that it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable (including applicable security breach notification law). Wellzesta warrants that it will provide the Services in accordance with the applicable SLA.
Disclaimers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. WELLZESTA MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY SWITCHED TELEPHONE NETWORKS.

10. TERM¶

The initial contract term and the terms governing contract renewal are defined in the MSA.

11. TERMINATION¶

The terms regarding contract termination are defined in the MSA.

Effects of Termination. If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately (except as set forth in BAA and as set forth in this Section); (ii) Wellzesta will provide Customer access to, and the ability to export, the Customer Data for a commercially reasonable period of time at Wellzesta’s then-current rates for the applicable Services; and (iii) upon request each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party.

12. INDEMNIFICATION¶

The terms regarding the indemnification of Wellzesta and the indemnification of the Customer are defined in the MSA.

Possible Infringement.
1. Repair, Replace, or Modify. If Wellzesta reasonably believes the Services infringe a third party's Intellectual Property Rights, then Wellzesta will: (i) obtain the right for Customer, at Wellzesta's expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe.
2. Suspension or Termination. If Wellzesta does not believe the foregoing options are commercially reasonable, then Wellzesta may suspend or terminate Customer's use of the impacted Services. If Wellzesta terminates the impacted Services, then Wellzesta will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of such Services.
General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party's prior written consent, such consent not to be unreasonably withheld or delayed; and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE A PARTY'S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.

13. LIMITATIONS OF LIABILITY¶

The terms regarding the limitations of liability are defined in the MSA.

14. MISCELLANEOUS¶

Notices. Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other party's legal department and primary point of contact and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
Assignment. Customer may not assign or transfer any part of this Agreement without Wellzesta's prior written consent, except to an Affiliate, but only if: (i) the assignee agrees in writing to be bound by the terms of this Agreement; and (ii) Customer remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): the party experiencing the change of control will provide written notice to the other party within thirty days after the change of control.
Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party's reasonable control.
No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.
No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.
Governing Law. The terms regarding governing law / jurisdiction are defined in the MSA.
Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.
Survival. The following sections will survive expiration or termination of this Agreement: Section 3, 6, 7.1, 11.1, 12, 13, 14, and 15.
Entire Agreement. This Agreement, and all documents referenced herein, is the parties' entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.
Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Page, the Agreement, and the terms located at any URL. If Customer signs a physical agreement with Wellzesta to receive the Services, the physical agreement will override this online Agreement.
Counterparts. The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.

15. DEFINITIONS¶

"Acceptable Use Policy" means the acceptable use policy for the Services available at http://policies.wellzesta.com/acceptable-use/ or such other URL as Wellzesta may provide.
"Account Manager" means the Wellzesta business person working with Customer regarding Customer's purchase of the Services.
"Admin Account(s)" means the administrative account(s) provided to Customer by Wellzesta for the purpose of administering the Services. The use of the Admin Account(s) requires a password, which Wellzesta will provide to Customer.
"Admin Console" means the online tool provided by Wellzesta to Customer for use in reporting and certain other administration functions.
"Administrators" mean the Customer-designated technical personnel who administer the Services to End Users on Customer's behalf.
"Ads" means online advertisements displayed by Wellzesta to End Users.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
"BAA" means the HIPAA Business Associated Agreement that is attached as Appendix C to the MSA.
"Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
"Confidential Information" means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. Customer Data is Customer's Confidential Information.
"Customer Data" means data, including events, dining opportunities, notifications, Announcements, provided, generated, transmitted or displayed via the Services by Customer or End Users.
"Customer Domain Names" mean the domain names owned or controlled by Customer, which will be used in connection with the Services and specified in the Order Page.
"Emergency Security Issue" means either: (a) Customer's use of the Services in violation of the Acceptable Use Policy, which could disrupt: (i) the Services; (ii) other customer's use of the Services; or (iii) the Wellzesta network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
"End Users" means the individuals that Customer permits to use the Services.
"End User Account" means a Wellzesta-hosted account established by Customer through the Services for an End User.
"Export Control Laws" means all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.
"Fees" means the amounts invoiced to Customer by Wellzesta for the Services as described in an Order Page.
"Help Center" means the Wellzesta help center accessible at http://docs.wellzesta.com/ or other such URL as Wellzesta may provide.
"High Risk Activities" means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
"HIPAA" means the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any regulations issued thereunder.
"Initial Services Term" means the term for the applicable Services beginning on the Service Commencement Date and continuing for the duration set forth on the Contract.
"Intellectual Property Rights" means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
"MSA" means Master Software Subscription and Professional Services Agreement.
"Non-WellzestaLife Products" means Wellzesta products which are not part of the Services, but which may be accessed by End Users using their End User Account login and password.
"Non-Wellzesta Apps Product Terms" means the terms found at the following URL: http://docs.wellzesta.com, or such other URL as Wellzesta may provide.
"Notification Email Address" means the email address designated by Customer to receive email notifications from Wellzesta.
"Order Page" means the online order page Customer completes in signing up for the Services or attached to this Agreement, and which contains: (i) the Services being ordered; (ii) Fees; (iii) number of, and Initial Services Term for, End User Accounts; (iv) the applicable form of payment; and (v) Customer Domain Names.
"Service Commencement Date" is the date upon which Wellzesta makes the Services available to Customer, and will be within one week of Wellzesta's receipt of the completed Order Page, unless otherwise agreed by the parties.
"Service Pages" mean the web pages displaying the Services to End Users.
"Services" means the applicable Wellzesta Life services. The Services are as described here: http://policies.wellzesta.com/services-summary/ or such other URL as Wellzesta may provide.
"Services Term" means the Initial Services Term and all renewal terms for the applicable Services.
"SLA" means the Service Level Agreement located here: http://policies.wellzesta.com/service-level-agreement/, or such other URL as Wellzesta may provide.
"Suspend" means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
"Taxes" means any duties, customs fees, or taxes (other than Wellzesta's income tax) associated with the sale of the Services, including any related penalties or interest.
"Term" means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of (i) the end of the last Services Term or (ii) the Agreement is terminated as set forth herein.
"Third Party Request" means a request from a third party for records relating to an End User's use of the Services. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure.
"TSS" means the technical support services provided by Wellzesta to the Administrators during the Term pursuant to the TSS Guidelines.
"TSS Guidelines" means Wellzesta's technical support services guidelines then in effect for the Services. TSS Guidelines are at the following URL: https://policies.wellzesta.com/support-guidelines/ or such other URL as Wellzesta may provide.
"URL Terms" means the "Acceptable Use Policy," the "SLA," and the "TSS Guidelines."