This Well-Being Index Agreement (“Agreement”) is entered into as of the Effective Date detailed above between Corporate Web Services, Inc., with a place of business at 875 Estrella Pkwy #6088, Goodyear, AZ 85338 (“Company”), and the Customer/Organization listed above (“Customer”). This Agreement includes and incorporates the order form displayed, as well as the attached Terms and Conditions, and contains, among other things, warranty disclaimers, liability limitations, and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings set forth below:
1. SAAS SERVICES AND SUPPORT
1.1 License Grant
Subject to the terms of this Agreement, Company hereby grants Customer a limited, worldwide, non-transferable, non-exclusive, royalty-free right and license to use the Services set forth in the order form and all upgrades, updates, fixes, revisions, improvements furnished by Company for the Term and the output produced by the Services for the benefit of Customer and/or its participants, including, without limitation, the Customer Reports. As between the parties, Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, (c) all intellectual property rights related to any of the foregoing, and (d) all Participant Data collected from using the Service(s).
1.2 Service Level Commitment
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with Company’s standard practice of 99.8% up time excluding scheduled maintenance. If Company fails to satisfy the preceding up-time commitment during a month, then Company shall issue a credit to Customer in the amount of five percent (5%) of the Services Fee for that month, determined on a pro-rata basis as compared to the annual Service Fee paid by Customer to Company. As part of the implementation process, Customer will identify an administrative username and password for Customer’s account. Company requires the use of strong passwords for administrative and end user accounts.
1.3 Technical Support
Subject to the terms hereof, Company will provide Customer with technical support services via a customer support ticket system.
1.4 Data Sharing for Research
Customer acknowledges and agrees that Participant Data may be shared with the Mayo Clinic for research purposes, but solely in a de-identified aggregate form (as part of a national average). Company shall remain responsible for the acts and omissions of its subcontracts and the Mayo Clinic as if the Mayo Clinic was party to this Agreement.
2. TERMS AND APPLICABILITY
2.1 Protected Health Information
Company does not collect, gather, store, disseminate or in any way come in contact with personal health information as defined under current law. Company’s business is limited only to collection of Participant Data as defined above.
2.2 Data Disclosure Restrictions
Company, as the nature of its business, does not and agrees not to disclose any identifying information under any circumstances to any third parties. Company, as the nature of its business, only disseminates Participant Data in meta-analysis format and reports.
2.3 Business Associate/Agent Status
The parties agree based upon and reliance upon the representations, warranties and covenants set for in this Agreement, Company is not a Business Associate or Agent of Customer under HIPAA. Company represents, warrants and covenants that in the performance of Services and provision of Products under this Agreement, Company does not require and shall not request access to, not attempt to access, any Protected Health Information of Customer. If Company inadvertently comes in contact with Protected Health Information, Company will keep such information confidential and not further access, use or disclose it. If Company becomes a Business Associate or Agent of Customer, it agrees to comply with all applicable provisions as defined by law and agrees to enter into a Business Associate Agreement.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Customer Restrictions
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third-party; or remove any proprietary notices or labels.
3.2 Legal Compliance
Company represents, covenants, and warrants that Company will comply with all laws and regulations applicable to Company’s performance of the Service, including those laws and regulations concerning student educational records protected by the Family Education Rights and Privacy Act (“FERPA”).
3.3 Indemnification by Company
Company hereby agrees to indemnify and hold harmless Customer against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action by a third party that arises from an alleged violation of any laws and regulations applicable to Company’s performance of the Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.4 Customer Equipment and Security
Customer shall be responsible for obtaining and maintaining any Equipment needed to connect to, access or otherwise use the Services. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords), and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.5 Participant Notifications
Company will provide an appropriate alert, prominently displayed, on the user dashboard for all participants explaining how Participant Data will be used and protected.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1 Mutual Confidentiality
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Proprietary Information relating to the Disclosing Party’s business. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the obligations in the preceding sentence will not apply in the event, and only to the extent, that the Proprietary Information: (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2 Company Data Rights
Company shall own and retain all right, title and interest in and to (i) the Services and Software, and all improvements, enhancements or modifications thereto, and (ii) any software, applications, inventions or other technology developed in connection with Services or support provided by Company pursuant to this Agreement, and all intellectual property rights related to any of the foregoing, and (iii) all Participant Data collected from participants using the Service(s). Company represents and warrants that: (a) it will de-identify the Participant Data in accordance with generally accepted industry standards and practices and (b) Participant Data will not be used by Company for any purpose other than as required under this Agreement, nor shall such data or any part of such data be disclosed, assigned, leased or otherwise disposed of to third parties by Company, its officers, directors, employees, or agents, provided that Company may disclose such data in aggregate and de-identified form to Mayo Clinic (if requested) for research purposes.
4.3 Service Improvement Rights
Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Participant Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5. PAYMENT OF FEES
5.1 Fees and Charges
Customer will pay Company the then applicable fees described in the order form for the license fee and Services in accordance with the Terms therein (the “Fees”). If Customer’s use of the Services exceeds the service capacity set forth on the order form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial service Term or then current renewal Term, upon sixty (60) days prior written notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Company’s billing department at billing@cws.net.
5.2 Payment Methods and Terms
Company shall bill through and accept payment through an online checkout system or have an invoice sent electronically, in which case, full payment for invoices issued in any given month must be received by Company forty-five (45) days after receipt of the invoice by Customer. If applicable, Customer shall be responsible for all sales and/or use taxes associated with Services other than U.S. taxes based on Company’s net income. Payment may be made via:
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. INDEMNIFICATION
Each Party shall defend, indemnify and hold harmless the other Party, including Affiliates and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns from and against all claims of third parties, and all associated losses, to the extent arising out of (a) a Party’s negligence or willful misconduct in performing any of its obligations under this Agreement, or (b) a material breach by a Party of any of its representations, warranties, covenants or agreements under this Agreement.
8. SECURITY
8.1 Security Standards
At all times while this Agreement is effective, Company shall: (i) maintain and enforce an information security program including safety and physical and technical security policies and procedures with respect to its processing and use of Participant’s Data that meets or exceeds the minimum industry practices and standards of acceptable data security policies; (ii) provide technical and organizational safeguards against accidental, unlawful, or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, commingling, or processing of such information that ensure a level of security appropriate to the risks presented by the processing and use of customer information; (iii) implement reasonable administrative, technical, and physical safeguards in an effort to: (a) secure and defend all locations, equipment, systems, and other materials against “hackers” and others who may seek, without authorization, to disrupt, damage, modify, access, or otherwise use Company’s systems or the information found therein; (b) prevent Customer from having access to the data belonging to other customers who use Company’s services or other third parties; (c) prevent Participant Data from being contaminated by the data of other Company customers or third-parties; and (d) prevent unauthorized access to any Participant Data.
8.2 Nonexclusive Remedy for Security Breach
Any failure of the services to meet the requirements of this Agreement with respect to the security of any Participant Data, including any related backup, disaster recovery or other policies, practices or procedures, is a material breach of this Agreement for which Customer, at its option, may terminate this Agreement immediately notwithstanding any other provision of this Agreement.
9. LIMITATION OF LIABILITY
EACH PARTY SHALL NOT BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS, EACH PARTY’S CUMULATIVE MAXIMUM LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
10. USE OF CUSTOMER NAME & LOGO
10.1 Authorization
Company is hereby authorized to use Customer’s name and/or logo within the Well-Being Index application (ie: https://www.mywellbeingindex.org) after Customer’s participants have authenticated and/or used Customer’s invitation code. This authorization is solely to provide custom branding within the application for users to be aware of the affiliation between Company and Customer.
10.2 Limited License
Company understands, accepts, and agrees that Customer is under no obligation to give Company permission to use its logo in any way or any medium. Customer may at any time, in its sole discretion, terminate any permission granted to use its logo in any way or any medium. Notwithstanding any other provision in the Agreement, the execution of this authorization shall result only in Customer granting Company a limited, royalty-free, fully paid up, non-exclusive, non-transferable, and non-sublicensable license during times in which Customer’s permission is effective for Company’s use of the logo in any way or any medium. Nothing about this permission shall in any way enlarge the permissible scope of Company’s use of the logo unless such expanded scope is first agreed to in writing by and between Customer and Company. Upon termination of this Agreement for any reason, the permission granted herein shall automatically terminate contemporaneously with the termination of the Agreement.
11. LICENSE TERM AND RENEWAL
11.1 Initial Term
The initial Term of this license agreement shall be one (1) year commencing on the date of purchase or the invoice date, whichever occurs first.
11.2 Automatic Renewal
IMPORTANT: This license will automatically renew for successive one (1) year Terms unless Customer provides written notice of cancellation at least thirty (30) days prior to the renewal date. Upon renewal, Customer will be invoiced or charged for continued access and usage based on the most recent service Terms.
11.3 Cancellation Process
Customer may cancel the next auto-renewal at any time by providing written notice to Company no later than thirty (30) days prior to the end of the Term. Cancellation will prevent further renewals but will not affect the current Term, which will remain active until its natural expiration.
11.4 Fee Changes
Company reserves the right to modify its pricing or subscription plans. Any changes to Service fees or licensing terms will be communicated to Customer no fewer than sixty (60) days prior to the end of the then current Term. Absent timely cancellation as described in Section 11.3, such revised terms or Service fees shall become binding upon renewal.
12. MISCELLANEOUS
12.1 Severability
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
12.2 Assignment
This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent; however, any assignment is only effective if it subjects and binds the assignee to the same, or stricter, terms and conditions found in this agreement.
12.3 Entire Agreement
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
12.4 No Agency
No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
12.5 Notices
All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
12.6 Insurance
Company agrees to maintain the following insurance and policy limits during the Term of this Agreement: (i) commercial general liability insurance with a minimum limit of one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) in the aggregate; and (ii) cyber liability and data breach liability with a minimum combined single limit of one million dollars ($1,000,000.00) per occurrence and three million dollars ($3,000,000.00) in the aggregate.
12.7 Healthcare Program Eligibility
Company represents to Customer that Company (and each of Company’s agents, employees, or any substitutes thereof providing services under this Agreement): (i) is not currently excluded, debarred or otherwise ineligible to participate in the Federal health care programs as defined in 42 U.S.C. § 1320a-7b(f) (the “Federal Health Care Programs”); (ii) is not convicted of a criminal offense related to the provision of healthcare items or services even if not yet excluded, debarred or otherwise declared ineligible to participate in the Federal Health Care Programs; and (iii) is not under investigation or otherwise aware of any circumstances which may result in Company (or Company’s agents, employees, or any substitutes providing services under this Agreement) being excluded from participation in the Federal Health Care Programs. This is an ongoing representation during the Term of this Agreement. Company will immediately notify Customer of any change in the status of the representation set forth in this section, and Company will immediately remove from providing services at or for Customer any of its personnel that are or become ineligible to participate in the Federal Health Care Programs. Notwithstanding any other provision contained herein, any breach of this section gives Customer the right to terminate this Agreement immediately for cause.
12.8 Non-Discrimination
In addition to any other requirement of law, no party to this Agreement will discriminate against any employee or applicant for employment or against any patient because of age, race, religious creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, veteran status or handicap in its performance of this Agreement.
12.9 Confidentiality of Information
The parties agree and understand that any information gathered by Company from participants as part of the Services, including, without limitation, the Participant Data, may be protected from discovery in legal proceedings based upon State and Federal mandates, if applicable. Subject to the requirements set forth in this Agreement with respect to Participant Data, it is Company’s intent that any and all information gathered from participants is used for the focused purposes of safety and quality review as contemplated by the Peer Review/Quality Care Review protections, if applicable, and it is used only for the purposes contemplated by this Agreement. Company agrees not to disclose such information to third parties, absent a court order. Each party further agrees to use diligent and commercially reasonable efforts to legally oppose production of such information, including, but not limited to, objection to subpoenas, verifying court orders and requesting limiting disclosure in scope, time and context, or requesting a court order for a confidential designation.
12.10 Federal Requirements
This provision will apply to the extent required by 42 U.S.C. § 1395x(v)(1)(I). Until the expiration of four (4) years after the furnishing of the Services pursuant to this Agreement, Company will make available, upon written request, to the Secretary of the U.S. Department of Health and Human Services, or upon request to the Comptroller General or any of their duly authorized representatives, this Agreement, and Company’s books, documents and records that are necessary to certify the nature and extent of the cost of Services provided hereunder. If Company carries out any of the duties of this Agreement through a subcontract, with a value of or cost of Ten Thousand Dollars ($10,000) or more over a twelve (12) month period, with a related organization or individual, Company will obligate the related organization or individual to make available, upon written request to the Secretary of the U.S. Department of Health and Human Services or upon request to the Comptroller General, or any of their duly authorized representatives, the subcontract and books, documents, and records of such organization or individual that are necessary to verify the nature and extent of its costs.