Terms of Use
Last updated: November 14, 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 EMR Group 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 Inbox Admin 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 or the Application.
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 Inbox Admin)
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. If you subscribe to the Application through an order, form, the terms, as set out in Schedule A (as updated by WELL), shall govern.
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 Inbox Admin
Last updated: November 14, 2023
THIS SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF WELL AI INBOX ADMIN AS PROVIDED BY WELL EMR GROUP INC. (“WEG”).
CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. IF CUSTOMER REGISTERS FOR A FREE TRIAL OF WEG SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING THE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
1. Definitions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Content” means information obtained by WEG from publicly available sources or its third party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form.
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer” means in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
“Customer Data” means data submitted by Customer through purchased Services.
“Documentation” means WEG provided user documentation relating to the Services
“Free Services” means Services that WEG makes available to Customer free of charge.
“Order Form” means an ordering document or online order, including any addenda and supplements thereto specifying the Services to be provided hereunder that is entered into between Customer and WEG.
“Services” means the products and services, namely an application, feature, function, machine learning algorithm, APIs or other technology, that Customer has ordered under an Order Form, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by WEG. “Services” exclude Content and Third-Party Applications. For ca
“Third-Party Application” means a Web-based or offline software application that is provided by Customer or a third party and which may interoperate with the Services, including, for example, an electronic medical records application or an application that is developed by or for Customer.
“User” means, in the case of an individual accepting these terms on their own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by WEG without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, WEG at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, contractors and agents of Customer.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between the Parties.
2. Use of Services.
(a) Provision and Use of Services. WEG will make the Services available to Customer and its Affiliates, subject to the terms of this Agreement and the applicable Order Form(s). WEG will notify Customer if WEG makes a material change to the Services that has a material impact on WEG’s use of the Services provided that Customer has subscribed with WEG to be informed about such change.
(b) Protection of Customer Data. WEG will only access or use Customer Data to provide the Services by Customer and as otherwise instructed by Customer. WEG maintains appropriate safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards include, but are not limited to, measures for preventing unlawful access, use, modification or disclosure of Customer Data and to protect against anticipated threats or hazards to the security or integrity of the Services and Customer Data.
(c) Customer Responsibilities. Customer will allow only authorized Users to access the Services. Customer will (a) be responsible for Users’ compliance with this Agreement and Order Forms, including any acceptable use policy made available by WEG (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data, including any consents and notices required by law or otherwise, (c) use the Services only in accordance with this Agreement and Order Forms and applicable laws and government regulations, including privacy laws. Customer is responsible for any consents and notices required to permit (a) Customer’s use and receipt of the Services and (b) WEG’’s accessing, storing, and processing of data provided by Customer (including Customer Data, personal information and personal health information) under the Agreement. Customer acknowledges that the Services are not medical diagnostic tools and Customer remains solely liable for any use of the Services which impact diagnostic, clinical, triaging or public health and safety outcomes, including COVID-19 or other health screenings and outcomes. Any information or content provided by WEG, within the Services or otherwise, relating to COVID-19 or other health or public health and safety subjects, is to be used at Customer’s own risk, discretion and liability and WEG does not accept any responsibility or liability.
(d) Integration and Interoperability. The Services contain features designed to interoperate with Third-Party Applications. To use such features, Customer may be required to obtain access to such Third-Party Applications from their providers, and may be required to grant WEG or their service providers access to Customer’s account(s) on such Third-Party Applications. If Customer chooses to use a Third-Party Application with a Service, Customer grants WEG and its service providers permission to allow the Third-Party Application and its provider to access Customer Data as required for the interoperation of that Third-Party Application with the Service. Any acquisition by Customer of a Third-Party Application, and any exchange of data between Customer and any Third-Party Application provider, product or service is solely between Customer and the applicable Third-Party Application provider. WEG is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Application or its provider. Customer acknowledges and agrees that the Services may operate from infrastructures owned and operated by third parties and data may be hosted on third party platforms for the Services.
3. Usage Restrictions.
Customer will not (a) make any Service available to anyone other than Customer or authorized Users, or use any Service for the benefit of anyone other than Customer or its Affiliates, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit, or use any Services to access or use any of WEG’s intellectual property except as permitted under this Agreement or an Order Form, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, (k) disassemble, reverse engineer, or decompile a Service, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent. Customer will not use the Services to transmit, store, or process health information subject to United States HIPAA regulations except as permitted by an executed HIPAA Business Association Agreement. Any use of the Services in breach of the foregoing by Customer or Users that in WEG’s judgment threatens the security, integrity or availability of WEG’s services, may result in immediate suspension of the Services, however WEG will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
4. Usage Limits.
Services and Content are subject to usage limits specified in Order Forms and associated documentation. If Customer exceeds a contractual usage limit, WEG may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit.
5. License Granted by Customer.
Customer grants WEG, and its applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display Customer Data, each as appropriate for WEG to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement.
6. Free Services.
WEG may make Free Services available to Customer at WEG’s discretion. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the relevant Order Form(s) or documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that WEG, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that WEG will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if WEG terminates Customer’s account, except as required by law, WEG will provide Customer a reasonable opportunity to retrieve its Customer Data.
Free Services may contain bugs or errors and are provided as-is. Any participation in or use of the Free Services or its contents is at Customer’s sole risk. Customer acknowledges that WEG may discontinue Free Services at any time in its sole discretion.
NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT OR ORDER FORM, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND WEG SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE WEG’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, WEG AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO WEG AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
7. Fees and Payment
(a) Fees. Customer will pay all fees and applicable taxes specified in Order Forms. Payment obligations are non- cancelable and fees paid are non-refundable.
(b) Invoicing and Payment. Customer will provide WEG with valid and updated credit card information. Customer authorizes WEG to charge such credit card for all purchased Services listed in the Order Form. If the Order Form specifies that payment will be by a method other than a credit card, WEG will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to WEG and notifying WEG of any changes to such information.
(c) Overdue Charges. If any invoiced amount is not received by WEG by the due date, then without limiting WEG’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher.
(d) Suspension of Service. If any charge owing by Customer under this Agreement is 15 days or more overdue, WEG may suspend Services until such amounts are paid in full.
(e) Payment Disputes. WEG will not exercise its rights under the “Overdue Charges” or “Suspension of Service” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
(f) Taxes. Customer is responsible for any taxes, and Customer will pay WEG for the Services without any reduction for taxes. If WEG is obligated to collect or pay taxes, the taxes will be invoiced to Customer accordingly. If required under applicable law, Customer will provide WEG with applicable tax identification information that WEG may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse WEG for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Customer.
8. Proprietary Rights and Confidentiality
(a) Reservation of Rights and Ownership. Customer retains all Intellectual Property Rights in Customer Data. WEG has the required license to all intellectual property in the Services and the requisite right to offer such Services. No jointly owned intellectual property is created under or in connection with this Agreement. WEG or its service providers may use any suggestions or feedback without obligation. Except as expressly described in the Agreement, the Agreement does not grant either party any rights, implied or otherwise, to the other’s content or Intellectual Property.
(b) Mutual Protection of Confidential Information. Information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Agreement that is identified as confidential or that would reasonably be understood to be confidential based on the nature of the information or the circumstances surrounding its disclosure, is Confidential Information of the Disclosing Party. The Services and all information provided or disclosed to Customer relating to the Services is Confidential Information of WEG and the Customer Data is Confidential Information of the Customer. The Receiving Party shall use the same degree of care to protect such Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its Users, and other employees, service providers, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
9. Representation, Warranties and Disclaimers
(a) Representations and Warranties. Each party represents and warrants that it has full power and authority to enter into the Agreement.
(b) Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
10. Mutual Indemnification
(a) WEG Indemnification Obligations. WEG will defend Customer against a proceeding made or brought against Customer by a third party alleging that any purchased Service infringes or misappropriates such third party’s intellectual property rights(a “Claim Against Customer”), and will indemnify Customer from damages finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by WEG in writing of, a Claim Against Customer. If WEG receives information about an infringement or misappropriation claim related to a Service, WEG may in its discretion (i) modify the Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or, at its discretion, terminate the Service. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by WEG, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (4) a Claim against Customer arises from Content, a Third-Party Application or Customer’s breach of this Agreement, or applicable Order Forms.
(b) Customer Indemnification Obligations. Customer will defend WEG against any proceeding made or brought against WEG by a third party alleging that any Customer Data or Customer’s use of Customer Data within the Services or a Third-Party Application infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s or its End User’s breach of section 2.3 (“Customer Obligations”) (each a “Claim Against WEG”), and will indemnify WEG from any damages, attorney fees and costs finally awarded against WEG as a result of, or for any amounts paid by WEG under a settlement approved by Customer in writing of, a Claim Against WEG.
(c) Indemnification Conditions. The sections titled ‘WEG Indemnification Obligations’ and ‘Customer Indemnification Obligations’ are conditioned on the following:
a. The indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and proceeding.
b. The indemnified party must tender to the indemnifying party sole control of the defense and settlement of the proceeding, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
(d) Sole Rights and Obligations. Without affecting either party’s termination rights, this section states the parties’ only rights and obligations under this Agreement for any third party allegations or proceedings.
11. Limitation of Liability
(a) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO WEG UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ LIABILITY UNDER THE “CUSTOMER OBLIGATIONS” SECTION OR PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
(b) Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
12. Term and Termination
(a) Agreement Term. The Agreement is effective from the Effective Date until it is terminated in accordance with its terms (the “Term”). If Customer entered into an Order Form, the terms therein shall govern.
(b) Termination for Convenience. Subject to any financial commitments in an Order Form or addendum to the Agreement, Customer may terminate the Agreement or an Order Form for convenience with 60 days’ prior written notice to WEG. Subject to any paid Subscription Terms remaining in an Order Form, WEG may terminate the Agreement with 30 days’ prior written notice.
(c) Termination for Breach. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
(d) Effects of Termination. If the Agreement terminates or expires, then all Order Forms also terminate or expire. If an Order Form terminates or expires, then after that Order Form’s termination or expiration effective date, (a) all rights and access to the Services under that Order Form will terminate (including access to Customer Data, if applicable), unless otherwise agreed upon in writing, and (b) WEG will send Customer a final invoice (if applicable) for payment obligations under that Order Form. Termination or expiration of one Order Form will not affect other Order Forms. If Customer ceases to have any Order Forms in effect for a period of 90 days or longer since the expiry of Customer’s most recent Order Form expiry or termination, WEG may terminate this Agreement
(e) Survival. The following Sections will survive expiration or termination of the Agreement: Free Services, Fees and Payment, Proprietary Rights and Confidentiality, Disclaimers, Indemnification, Limitation of Liability, Effects of Termination, General Provisions.
13. Professional Services
“Professional Services” means implementation or integration work, training or customized machine learning workflows associated with the Services and performed by WEG or a service provider under a statement of work (“SOW”). The applicable SOW will describe the scope of Professional Services to be provided thereunder and the associated terms and fees, and will be executed by both parties prior to the performance of Professional Services.
14. General Provisions
(a) Export Compliance. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer will not permit any User to access or use any Service in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
(b) Notices. WEG will provide notices under the Agreement to Customer by sending an email to the contact email provided by Customer under the applicable Order Form. Customer will provide notices under the Agreement to WEG by sending an email to legal@WEG.ai. Notice will be treated as received when the email is sent. Customer is responsible for keeping its notification email address current throughout the Term. The parties may use emails to satisfy written approval and consent requirements under the Agreement.
(c) Privacy. The Application and all operations of WEG with respect to the Application shall be governed by the privacy policy as posted on WEG’s webpage where this Agreement can be found. Such terms shall be incorporated into this Agreement and may be amended by WEG from time-to-time.
(d) Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
(e) Changes to this Agreement. WEG may make changes to this Agreement, including pricing (and any linked documents) from time to time. Unless otherwise noted by WEG, material changes to the Agreement will become effective 7 business days after they are made available to Customer (including via URL), except to the extent the changes apply to new functionality in which case they will be effective immediately. If Customer does not agree to the revised Agreement, Customer may stop using the Services or terminate this Agreement for convenience in accordance with the terms herein. Customer’s continued use of the Services after such material change will constitute Customer’s consent to such changes. WEG will post any modification to this Agreement through the Services or to its website.
(f) Force Majeure. WEG shall not be liable for failure or delay in performance of its obligations under this Agreement to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, pandemics, terrorism, riots, or war.
(g) Subcontracting. WEG may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations
(h) No Agency. The Agreement does not create any agency, partnership, or joint venture between the parties.
(i) No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.
(j) Severability. If any part of the Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effects.
(k) No Third-Party Beneficiaries. The Agreement does not confer any rights or benefits to any third party unless it expressly states that it does.
(l) Governing Law. All claims arising out of or relating to the Agreement or the Services will be governed by British Columbia law, excluding conflict of laws rules, and will be litigated exclusively in the courts of Vancouver; the parties consent to personal jurisdiction in those courts.
(m) Entire Agreement and Order of Precedence. This Agreement and the privacy policy is the entire agreement between WEG and Customer regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, and (2) this Agreement. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
(n) Electronic Signatures. The parties consent to electronic signatures.
