WAYA HEALTH TERMS OF SERVICE

These terms of service (the “Terms” or this “Agreement”) govern the services and devices provided to Customer by Wellovate and apply to any agreement (“Order”) between Wellovate and Customer that references these Terms.

1.               Waya Health Platform.

1.1            Subscription to the Waya Health Platform. Subject to the terms and conditions of this Agreement, Wellovate shall make the Waya Health Platform, Applications, and other software as may be identified in an Order (collectively, the “Services”) available for access by Authorized Users during the Subscription Term and as described in an Order.

1.2            Third Party Applications. Customer acknowledges that certain Applications provided via the Services may be developed by third parties. Such third parties may require Customer to agree to additional license or other terms prior to using the applicable Application(s).

1.3            Support. Wellovate shall use commercially reasonable efforts to: (a) maintain the security of the Services; (b) provide commercially reasonable efforts to correct Errors; and (c) provide Customer with updates, upgrades, enhancements, and any other improvements that Wellovate generally offers to other customers of the Services.

1.4            Support Limitations. Wellovate shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (a) Customer’s or Users’ use of any version of the Services other than the then-current unmodified version provided to Customer; (b) any problems which are not Errors; (c) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Wellovate; (d) nonconformities resulting from misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Services or Documentation; (e) problems or Errors caused by Customer’s, Users’, or other third party’s products, services or equipment; or (f) modification, amendment, revision, or change to the Services by any party other than Wellovate or Wellovate-authorized representatives. Any use of or reliance on data or data output contained in the Services is Customer’s or User’s sole responsibility.

1.5            Trials. Wellovate may offer optional trials and beta testing of Applications, as described in the Order or as otherwise offered by Wellovate from time to time. Notwithstanding anything else in this Agreement, Wellovate offers no warranty, indemnity, or support for such trials and beta tests.

2.               Customer’s Use of the Services.

2.1            Access. Each User will be assigned accesses credentials for access to and use of the Services. Customer is responsible for identifying Authorized Users and managing Authorized User accounts. Customer shall ensure that only Authorized Users access the Services on behalf of Customer. Users must not share Authorized User accounts with other Users, however, Customer may replace one Authorized User with another no more often than one time per 12 months.

2.2            Acceptable Use. Customer and its Users may use the Services only in accordance with this Agreement. Customer and its Users may not reverse engineer, decompile, disassemble, attempt to access source code, attempt to extract source code or compiled code, make derivative works of, or work around technical limitations in the Services, or perform or disclose benchmarking, availability, or vulnerability testing of the Services without Wellovate’s prior written approval. Customer and its Users may not rent, lease, lend, resell, transfer, or host the Services, or any portion thereof, to or for third parties except as expressly permitted in this Agreement.

2.3            Users. Customer controls access by its Users, and Customer is responsible for their use of the Services in accordance with this Agreement.

2.4            Professional Responsibility. Customer acknowledges that Customer is purchasing the Services described herein to assist Customer in Customer’s regular course of business. Customer understands and acknowledges that the Services are not intended for children under 13 that are not accompanied by their parent or legal guardian or under the direct supervision of Customer’s medical, clinical or allied health professional staff. Customer agrees to monitor the use of these Services by Customer’s internal clients, and to exercise regular and diligent control over its internal clients in a manner and to an extent necessary to ensure each and every internal client’s compliance with this Agreement.

3.               Privacy.

3.1            Customer Data. Wellovate or others working for Wellovate may collect, use, retain and process technical data, and other information provided by Customer into the Services (“Customer Data”) to facilitate the provision of software updates, support, and other services to Customer (if any) related to the Services. Customer retains all right, title and interest in and to the Customer Data. Wellovate may use this information to improve and/or to provide to Customer the Services or as required by law. Except as limited by law, Wellovate may use anonymized statistics, which shall not contain protected health information (PHI), derived from Customer Data for research, development, and/or marketing purposes. Customer will not provide, post, or transmit any Customer Data that: (a)   infringes, misappropriates or violates any intellectual property rights, publicity/privacy rights, law or regulation; (b)   contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (c) is deceptive, defamatory, obscene, pornographic or unlawful.

3.2            Personal Data. Customer is not required to provide personal data or PHI under this Agreement. To the extent Customer Data or Customer Content includes personal data or PHI (as those terms are defined in the applicable law), subject to any contrary provision in this Agreement, Wellovate will comply with the Waya Health Privacy Policy, available at wayahealth.com/privacy, which may be updated from time-to-time to maintain compliance with applicable law.

4.               Hardware

4.1            Delivery. Subject to the terms of this Agreement, Wellovate will supply to Customer the Devices indicated on the Order, if any. Delivery dates which might be specified in the Order or in any other communication from Wellovate (whether oral or in writing) are estimates only. Wellovate may make partial shipments to be separately invoiced and paid for when due. Any delay in delivery of any installment will not relieve Customer of its obligation to accept the remaining deliveries. Wellovate shall not be liable for any failure to ship complete orders or for any shipment delay.

4.2            Title. Customer acknowledges that the Devices identified as purchased on the Order are purchased by Customer, and Customer assumes all risk and liability resulting from the possession, use or disposition of such hardware, equipment, and/or physical components.

4.3            Rental. Wellovate shall retain title to any Devices identified as rented or leased (“Rented Devices”) on the Order. Rented Devices must be maintained on-site at the location to which they are delivered by Wellovate pursuant to the Order and may not be subleased, time-shared, or released to persons or entities other than Customer’s Authorized Users. At the end of the term of this Agreement or such other period as may be specified in an Order, Rented Devices shall be returned to Wellovate in good and operational condition. Customer shall reimburse Wellovate for damage to Rented Devices beyond normal wear and tear.

4.4            Acceptance. Unless otherwise agreed in writing, all shipments shall be deemed correct and undamaged, unless at the time of delivery Customer informs Wellovate of such shortfall or error in writing within fourteen (14) days after the original delivery date of the given shipment. Customer’s failure to inform Wellovate in this way shall constitute a waiver of any such claim. For under-shipments, Wellovate shall, at its sole discretion, issue a replacement shipment, or a credit to Customer’s account if Wellovate has granted credit terms to Customer within thirty (30) days of receipt of Customer written notice.

5.               Fees and Payment.

5.1            Fees. Customer will pay Wellovate the fees (“Fees”) as described in the Order. Unless otherwise specified in the Order, all Fees are due and payable in advance for the Subscription Term. All Fees due no later than 30 days after delivery of invoice to Customer by Wellovate, unless otherwise set forth in the Order.

5.2            Additional Users. If Customer’s Order includes a rate per Authorized User, Customer may increase the number of Authorized Users by paying in advance the additional fees per User at the rate specified in the Order, prorated for the number of months remaining in the Subscription Term.

5.3            Taxes. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Wellovate’s net income.

6.               Ownership.

6.1            By Wellovate. Customer acknowledges that, as between Customer and Wellovate, Wellovate retains all right, title and interest in and to the Services all Wellovate proprietary information and technology used by Wellovate or provided to Customer in connection with the Services (the “Wellovate Technology”), and that the Wellovate Technology is protected by intellectual property rights owned by or licensed to Wellovate. Other than as expressly set forth in this Agreement, no license or other rights in the Wellovate Technology are granted to the Customer hereunder. Customer hereby grants Wellovate a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Services. Wellovate shall not identify Customer as the source of any such feedback.

6.2            By Customer. Customer may provide Wellovate with one or more items of Customer Content, such as patient instructions owned by the Customer, educational materials owned by the Customer, Customer branding, and/or Customer logo(s) (hereinafter “Customer Content”) to display in the course of tailoring the Services to the Customer’s needs. Customer hereby grants Wellovate a non-exclusive right to display said Customer Content using the Services for this purpose. Customer represents that it owns all rights to any and all Customer Content provided to Wellovate, and as between Customer and Wellovate, Customer shall retain title to the Customer Content. Customer represents that it has reviewed all Customer Content provided to Wellovate, and Customer assumes responsibility for any and all Customer Content.

7.               Term and Termination.

7.1            Term. The term of this Agreement will commence on the Effective Date and continue until the end of the last-to-expire Subscription Term. At the end of each Subscription Term, a new Subscription Term will automatically renew for additional 12 month periods unless either Wellovate or Customer gives notice of its intention to terminate the Subscription Term prior to the end of the then-current Subscription Term. Such notice shall be provided via email to contact@wayahealth.com. Wellovate reserves the right to increase the Fees applicable to any renewal Subscription Term upon written notice to Customer, provided such notice is given at least 30 days prior to such renewal term.

7.2            Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) no later than 30 days after written notice of such breach. Upon the expiration or termination of this Agreement for any reason, any amounts owed to Wellovate under this Agreement will become immediately due and payable. Wellovate may remove and/or delete all Customer Data from the Services upon termination or failure to renew this Agreement, and Customer shall bear sole responsibility for retrieving any data Customer may require prior to termination. Sections 2.4, 3, 6.1, 8.3-8.5, and 9- 12 will survive the expiration or termination of this Agreement.

7.3            Suspension of Services. Wellovate reserves the right (in addition to any other rights or remedies Wellovate may have) to suspend Customer’s access to the Services if any Fees are more than 30 days overdue, until such amounts are paid in full.

8.               Warranty; Disclaimer.

8.1            Device Warranty. Wellovate Devices are covered by warranty during the Warranty Period. Customer may submit a claim under this warranty should a Device, within the Warranty Period, fail to operate in accordance with its specifications. This warranty shall not extend to normal wear and tear of the Devices or damages or malfunctions caused by Customer’s misuse, abuse, negligence, or modification of the Devices. If, during the Warranty Period, Customer submits a claim under this warranty, Wellovate will, at its option: (i) repair the Device, (ii) replace the Device with a replacement product of the same model or a Device that has the same or substantially similar features as the original Device, or (iii)   refund Customer’s purchase price in exchange for the return of Customer’s Device. For purchased Devices, when a Device or part is replaced or a refund provided, any replacement item becomes Customer’s property and the replaced or refunded item becomes Wellovate’s property. For rented Devices, both the replacement item and the replaced or refunded item remain Wellovate’s property. A replacement part or product or a repaired Device assumes the remaining warranty of the original Device or ninety (90) days from the date of replacement or repair, whichever provides longer coverage. The warranty under this Section 8.1 does not apply to the Services, which are instead covered by the limited warranty under Section 8.3.

8.2            Mail-in Service. Wellovate may, at its sole discretion, elect to fulfill its obligations under Section 8.1 via mail-in services. If Wellovate elects to provide service through its mail-in service, Wellovate will provide to Customer prepaid waybills and if applicable, packaging material and instructions on how to properly pack and address the Device, so that Customer may ship the Device to a repair location. Instructions may be sent to Customer via email or in hard copy with the packaging material. Once service is complete, Wellovate will return the Device or a replacement Device to Customer. Wellovate will pay for shipping to and from Customer’s location if all instructions regarding the method of packaging and shipping the Device are followed.

8.3            Limited Warranty for Services. During the Subscription Term, Wellovate warrants that the Services, when used as permitted by Wellovate and in accordance with the Documentation, will operate as described in the Documentation in all material respects. If Customer notifies Wellovate of any breach of the foregoing warranty, Wellovate shall, as Customer’s sole and exclusive remedy, provide the support services described in Section 1.3. Wellovate does not offer any warranty with respect to Applications not developed by Wellovate.

8.4            Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.3, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND (B) AS TO THE SERVICES AND DOCUMENTATION, WELLOVATE AND ITS SUPPLIERS AND LICENSORS MAKE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Except as expressly provided in Section 8.3, Wellovate does not represent or warrant that the Services will be error-free or uninterrupted; that Errors or other defects will be corrected; or that the Services or the server that makes the Services available is free from any harmful components, including, without limitation, viruses. Wellovate does not make any representations or warranties that the information (including any instructions) on the Services is accurate, complete, or useful. Wellovate does not warrant that Customer’s use of the Services is lawful in any particular jurisdiction, and Wellovate specifically disclaims such warranties.

8.5            No Diagnosis, Treatment, or Medical Advice.  The  Services  and  Devices  are  for informational, educational, and  quality  improvement  purposes  only  and  do not  constitute  medical advice. None of the Services or Devices are intended to be a substitute for professional medical advice and are not intended to diagnose, treat, prevent, mitigate or cure any disease. Use of the Services and Devices does not create an express or implied physician-patient relationship. In using the Services and Devices, Customer agrees that Wellovate is not, or will not be, liable or otherwise responsible for any decision made or any action taken or any action not taken due to Customer’s use of the Services or Devices. The Services and Devices have not been evaluated by the Food and Drug Administration or any equivalent regulatory authority in any other jurisdiction. Customer represents that, in cases where Customer uses the Services and Devices in connection with patient care, Customer will only use the Services and Devices in clinically appropriate scenarios, in accordance with the Documentation, and under supervision of a Customer healthcare professional. As between Customer and Wellovate, Customer accepts sole responsibility for any outcomes relating to use of the Services and Devices by Customer.

9.               Indemnity.

9.1            By Wellovate. If any action is instituted by a third party against Customer based upon a claim that the Waya Health Platform or an Application developed by Wellovate, infringes any third party’s intellectual property rights, Wellovate shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement. If the use of the Waya Health Platform or any Application developed by Wellovate is enjoined or, in Wellovate’s determination is likely to be enjoined, Wellovate shall, at its option and expense (a) procure for Customer the right to continue using the Waya Health Platform or Application, (b) replace or modify the Waya Health Platform or Application so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Waya Health Platform or Application. This Section sets forth the entire obligation of Wellovate and the exclusive remedy of Customer against Wellovate for any claim that the Services infringe a third party’s intellectual property rights.

9.2            By Customer. If any action is instituted by a third party against Wellovate relating to Customer’s breach of Sections 2.2, 2.4, 3.1, or 6.2, Customer will defend such action at its own expense on behalf of Wellovate and shall pay all damages attributable to such claim which are finally awarded against Wellovate or paid in settlement of such claim. This subsection states the sole and exclusive remedy of Wellovate and the entire liability of Customer for the claims and actions described herein.

9.3            Procedure. Any party that is seeking to be indemnified under the provisions of this Section 9 must

(a) promptly notify the other party of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”); (b) give the indemnifying party the sole control over the defense of such Claim, provided that the indemnifying party may not settle the Claim without the indemnified party’s prior written consent, which shall not be unreasonably withheld, unless the settlement unconditionally releases the indemnified party of all related liability; and (c) reasonably cooperate with the defense of the Claim.

10.            LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN THIS SECTION 10, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WELLOVATE OR CUSTOMER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT. IN NO EVENT SHALL WELLOVATE’S aggregate, cumulative liability in any way relating to this Agreement exceed the amount of fees actually received by Wellovate from Customer during the twelve (12) months preceding the claim. the parties would not have entered into this agreement but for such limitations.

11.            General Provisions.

11.1          Assignment. Neither party may assign any rights or obligations arising under this Agreement, without the prior written consent of the other; except that Wellovate may assign this Agreement in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing shall be null and void.

11.2          Subcontracting. Customer agrees that Wellovate may subcontract certain aspects of the Services to qualified third parties, provided that any such subcontracting arrangement will not relieve Wellovate of any of its obligations hereunder.

11.3          Choice of Law. This Agreement will be governed by and construed in accordance with the laws of the state of North Carolina, without regard to its conflicts of laws principles. Excluding actions seeking solely equitable relief, any dispute, claim or controversy arising out of or relating to this Agreement shall be finally determined by binding arbitration administered by the Rules of JAMS in the state of North Carolina before one arbitrator.

11.4          Notice. All notices under the terms of this Agreement shall be given in writing. Email is an acceptable form of delivery. Email notices to Wellovate must be delivered to contact@wayahealth.com.

11.5          Entire Agreement. This Agreement and the Orders constitute the entire agreement of the parties and supersede any and all previous and contemporaneous understandings. Only a writing signed by both parties may modify it.

11.6          Severability. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect and the court will attempt to reform the invalid or unenforceable provision to effectuate the intent of the parties in a lawful manner.

11.7          Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing.

11.8          Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.

11.9          Counterparts. This Agreement and any Orders may be executed in counterparts, which taken together shall form one legal instrument.

12.            Definitions. As used in this Agreement:

12.1          “Applications” means the applications, including extended reality, audio, and video content, used by Customer via the Waya Health Platform, as identified in the Order.

12.2          “Authorized User” means a User that is assigned an account that grants access to one or more Applications, and is authorized by Customer for use of such Waya Health Platform under this Agreement.

12.3          “Claim” is defined in Section 9.3.

12.4          “Customer Content” is defined in Section 6.2.

12.5          “Customer Data” is defined in Section 3.1.

12.6          “Device” means hardware that is identified on the Order and sold by Wellovate to Customer for the purpose of running the Applications.

12.7          “Services” is defined in Section 1.1.

12.8          “Documentation” means any materials provided by Wellovate to Customer that describe the features, functionality, operation, instructions for use, or safety requirements of the Services or Devices.

12.9          “Error” means a reproducible defect that results in a failure of the Services when used in accordance with the Documentation.

12.10       “Fees” is defined in Section 5.1.

12.11       “Order” is defined in the opening paragraph of this Agreement.

12.12       “Rented Devices” is defined in Section 4.3.

12.13       “Subscription Term” is defined in the Order.

12.14       “Usage Data” means any data or information generated by the Waya Health Platform or Applications, excluding Customer Data.

12.15       “Users” means Customer’s employees, representatives, consultants, contractors or agents that Customer designates to access the Waya Health Platform.

12.16       “Waya Health Platform” means the technology used by Wellovate to deliver the Applications to Customer.

12.17       “Warranty Period” means the warranty period specified in the Order, or if no warranty period is specified in the Order, the sixty (60) day period following delivery of a Device.

12.18       “Wellovate Technology” is defined in Section 6.1.

Last updated January, 30 2023