Terms and conditions
INTRODUCTION
These are the Terms of Service (“Terms”) under which Digital Wellness Institute (“Digital Wellness” or “DWI”) provides its products and services to the entity or organization that has entered into an Order Form with Digital Wellness specifically referencing these Terms (“Customer”). These Terms, together with an Order Form signed by DWI and Customer specifically referencing these Terms, are a binding agreement governing Customer’s access to and use of DWI’s products and services.
DEFINITIONS
Where used in the Agreement, the following terms will have the meanings given them below. Capitalized terms used in the Agreement but not defined in this Section have the meaning given to them in the Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means having more than 50% ownership or the right to direct the management of the entity.
“Aggregate Data” means (a) Customer-specific information, data, and content contained in any report(s) delivered to Customer pursuant to the Agreement; and (b) data that is derived from the Raw Data and delivered by DWI to Customer pursuant to the Agreement, to the extent that the foregoing has been aggregated and anonymized. For the avoidance of doubt, Aggregate Data does not include any Raw Data or Customer Data.
“Agreement” means one or more Order Forms entered into between Customer and DWI together with these Terms, all as the foregoing may be added to or amended by the Parties from time to time in accordance with Sections 3.2 (Further Services) and 14.6 (Amendments).
“Assessment” means any assessment conducted by DWI, if ordered by Customer as part of the Services, pursuant to which DWI uses its tools and methodologies to assess and measure digital wellness (including, but not limited to, use of intellectual property such as the Digital Wellness Workplace Insights Survey, Digital Wellness Student Insights Survey, Individual Flourishing Survey, Methodology and others).
“Confidential Information” means (1) any software utilized by DWI in the provision of the Service and its respective source code; (2) Customer Data; (3) each party’s business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know- how and other significant and valuable business information that would otherwise be considered to be trade secrets under Law, that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary; and (4) the terms, conditions and pricing of this Agreement (but not its existence or parties). Confidential Information does not include any information that, without the Recipient’s breach of an obligation owed to the Discloser: (1) is or becomes generally known to the public; (2) was known to Recipient prior to disclosure by Discloser; (3) was independently developed by Recipient; or (4) is received by Recipient from a third party. Customer Data will not be subject to the exclusions set forth in this definition.
“Customer Data” means electronic data or information submitted to the Service by Customer or Users. For example, Customer Data includes Customer’s proprietary data and information that Customer provides to DWI so that DWI may conduct an Assessment (such as demographic and corporate information necessary to distribute the Survey to participants (such as email address, employee ID, and other personally identifying information) and the data provided by the Customer to DWI for the Digital Wellness Insights program or other data collection. For the avoidance of doubt, Customer Data does not include either Aggregate Data or Raw Data.
“Data” means the Raw Data and the Aggregate Data.
[“Documentation” means DWI’s electronic Administrator Guide for the Service, which may be updated by DWI from time to time.]
“DWI Intellectual Property” means (a) all copyrightable works owned or licensed by DWI (including without limitation books, articles, brochures, surveys, culture tools, software, the form and structure of reports, and other materials, tools and methodologies), whether or not the copyrights in such works have been registered in the U.S. or any other jurisdiction; (b) all confidential information and material belonging to DWI; (c) all DWI names, service marks, icons, and logos; (d) all DWI Materials; (e) the Data; (f) the Services; and (g) the Software.
“DWI Materials” means all techniques, algorithms and methods or rights thereto owned by, or licensed to, DWI during the term of the Agreement and employed by DWI in connection with the Services provided to Customer.
“Fees” means the fees to be paid by Customer to DWI as set forth in the applicable Order Form.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Order Form” means one or more Order Forms under entered into by DWI and Customer for the provision by DWI of Services to Customer.
“Party” means each of DWI and Customer, and together DWI and Customer are the “Parties” to the Agreement.
“Raw Data” means the confidential and anonymous responses received by DWI from Customer and Customer’s Users in connection with, among other things, the Digital Wellness Workplace Insights Survey(s) and/or Culture Audit(s), focus groups, and one-to-one interviews administered by DWI pursuant to the Agreement, as well as testimonials published online or provided offline by Customer Users. For the avoidance of doubt, Raw Data does not include any Aggregate Data or Customer Data.
“Service” means the DWI products and services, which may include Training Content or Surveys, that DWI will make available to Customer as described in the applicable Order Form.
“Survey” means the web-based paper-based Customer digital wellness survey consisting of DWI’s standard survey questions and additional questions as requested by Customer.
“Subscription Term” means the term of the Agreement as set out in the applicable Order Form, unless earlier terminated in accordance with these Terms.
“Training Content” means digital courseware, training modules, testing and training templates, games, posters, artwork, videos, newsletters, or other content and materials provided by Digital Wellness.
“Users” means employees, consultants, contingent workers, independent contractors, students or trainees of Customer and its Affiliates for whom a subscription to the Service has been purchased in an Order Form.
SERVICES
Provision of Services. DWI hereby grants Customer a personal, limited, non-exclusive, nontransferable license (i) for Customer, its Affiliates and Users to access and use the Services set out in the applicable Order Form and (ii) if Training Content downloads are enabled in the applicable Services, for Customer and its Affiliates to download, install, use, execute, and display the Training Content, in each case solely for the internal purposes of Customer and its Affiliates and subject to the terms and conditions of the Agreement, including payment of all Fees and the scope of use defined in the applicable Order Form.
Further Services. Subject to Section 14.6 (Amendments), the Parties may modify the existing scope of Services by (a) amending an existing Order Form (including with respect to additional Fees); or (b) executing additional Order Forms.
Restrictions. Except as specifically permitted under the Agreement, Customer may not, and may not enable any third party, to (a) modify, copy, or create derivative works based on, the Service or Training Content, (b) license, sublicense, sell, resell, rent, lease, transfer, assign, offer in a service bureau or otherwise make the Service or Training Content available to any third party other than to Affiliates and Users, (c) work around any technical limitations in the Service, or decompile, disassemble or otherwise reverse engineer any software used by Digital Wellness in the provision of the Service except as otherwise permitted by applicable law, (d) access the Service in order to build any commercially available product or service or (e) otherwise use the Service except as expressly allowed under Section 3.1 and the applicable Order Form.
CUSTOMER OBLIGATIONS
Access and Use. Customer will have sole responsibility for the accuracy, quality, and legality of all Customer Data, will take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and will notify DWI promptly of any unauthorized access or use. Customer will not: (1) use the Service in violation of applicable laws; or (2) knowingly interfere with or disrupt performance of the Service or the data contained therein. Customer is responsible for its Affiliates and Users’ compliance with the Agreement and any breach by its Affiliates or Users will be deemed a breach by Customer.
Customer Users. The Services are only permitted to be used by the authorized number of Users for whom Customer paid the applicable Services Fees. The Services are provided on a per-seat, subscription basis. Customer is solely responsible for the management of access to the Services of its Users. The concurrent number of Users receiving access may not exceed the number of purchased seats. If the number of Users exceeds the number of purchased seats, Customer is obligated to either pay for any seats that surpass the purchased amount or immediately reduce its number of Active Users. Additional seats may be added during the applicable Subscription Term and such additional seats will be co-pending with the then-current Subscription Term and will terminate on the same date. Add-ons for more seats, mid-Subscription Term, will be priced at the same volume, level, and term discount purchased under the applicable Order Form and will be valid only until the end of such co-pending Subscription Term. New rates may apply upon renewal.
Cooperation and Assistance. As a condition to DWI’s performance under the Agreement, Customer will at all times: (a) provide DWI with good faith cooperation and access to such information, facilities, and equipment as may be reasonably required by DWI in order to provide the Services, including, but not limited to, providing Customer Data; (b) provide such personnel assistance as may be reasonably requested by DWI from time to time; and (c) comply with its obligations under the Agreement.
LMS. Customer acknowledges and agrees that the Training Content, if ordered by Customer under an Order Form, will be made available by DWI to Customer for use on or with the Customer’s own Learning Management System (LMS), orDWI will provide access to its LMS as part of the Services.
FEES AND PAYMENTS
Payment. In consideration for DWI making available and performing the Services, Customer will pay to DWI the Fees in the amounts and in accordance with the terms set forth in the Order Form. Unless otherwise set out in an Order Form, Fees are payable within 30 days of the invoice date. DWI reserves the right to cease making available or performing the Services to Customer if payments are not made on time. DWI reserves the right to charge interest on overdue balances at a total rate of the Wall Street Journal Prime Rate plus 5%, calculated from the due date and compounded monthly on an actual/365 day basis.
Taxes. Fees invoiced pursuant to this Agreement do not include, and may not be reduced to account for, any taxes, which may include local, state, provincial, federal or foreign taxes, withholding taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added taxes, excise, use, goods and services taxes, consumption taxes or similar taxes (collectively “Taxes”). Customer will pay all Taxes imposed on the Service or any other services provided under this Agreement. If Digital Wellness has a legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount will be computed based on Customer’s address listed in the Order Form for this Agreement which will be used as the ship-to address on the Order Form, and invoiced to and paid by Customer, unless Customer provides Digital Wellness with a valid tax exemption certificate authorized by the appropriate taxing authority.
PROPRIETARY RIGHTS AND DATA
Customer Data.
As between DWI and Customer, the Customer Data, and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of Customer or its licensors.
DWI will use Customer Data solely to perform the Services and in a manner that is compatible with the purposes for which the Customer Data is furnished to DWI or subsequently authorized to be used, including as permitted under this Agreement, and DWI will implement and maintain security measures to help ensure that any Personal Information included in Customer Data is properly maintained and protected in accordance with Section 8 (Privacy and Data Protection).
Aggregate Data and Raw Data.
As between DWI and Customer, the Raw Data and the Aggregate Data, and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of DWI.
The Raw Data will not be provided to Customer by DWI in order to protect the confidentiality of Customer respondents.
DWI intends to use the Aggregate Data solely for the internal purposes of DWI, including without limitation for benchmarking, creation of best practices and other R&D purposes.
DWI will not share any Raw Data, Customer Data, or any non-anonymous, Customer-specific information about Customer’s results with any third parties without receiving prior written permission from Customer.
To protect the confidentiality of Customer respondents, DWI recommends reporting Assessment results only for those Customer demographic groups (departments, demographic groups, etc.) in which ten (10) or more people responded to the Assessment; and (b) DWI will not report on Assessment results in which fewer than five (5) people in a Customer demographic group have responded.
Service, Training Content and Results
As between DWI and Customer, the DWI Intellectual Property, and all Intellectual Property Rights therein or relating thereto (except for limited rights granted to Customer and Customer’s Users in the Agreement), are and will remain the exclusive property of DWI or its licensors. Except for the limited rights expressly granted to Customer hereunder, Digital Wellness reserves all rights, title and interest in and to the Service and Training Content, including all related Intellectual Property Rights. Customer hereby grants Digital Wellness a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into its services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users relating to DWI’s products or services (“Customer Input”). Customer will have no obligation to provide Customer Input, and any Customer Input is provided without warranties.
Reports and documents (including electronic documents) provided by DWI to Customer may be distributed internally by Customer, but any external distribution is prohibited except with prior written approval from DWI.
CONFIDENTIALITY
Each party (the “Recipient”) will use the same degree of care that it uses to protect its own confidential information of like kind (but in no event using less than a reasonable standard of care) not to disclose or use any Confidential Information of the other party (the “Discloser”) except as reasonably necessary to perform the Recipient’s obligations or to exercise the Recipient’s rights under this Agreement or with the Discloser's prior written permission. For purposes of clarification, this Section 7 also applies to Confidential Information either party or its Affiliates shares with the other party or its Affiliates related to potential future subscription services. Either party may disclose Confidential Information on a need to know basis to its Affiliates, contractors and service providers, including third party submission tools or online portal providers required by the Discloser for proposal submissions (“Representatives”), who are bound by confidentiality obligations at least as restrictive as those in this section. The Recipient will be responsible for any acts or omission of its Representatives with respect to protection of the Discloser’s Confidential Information. The parties agree that (1) the Recipient’s or its Representatives’ online portal terms conflicting with the terms of this Section 7 will not be binding on the Discloser submitting its Confidential Information to the Recipient through the Recipient’s or its Representative’s online portal, (2) this Section 7 applies to all such Confidential Information disclosed to the Recipient through such online portals; and (3) this Agreement supersedes any such “click-through” or other online terms. To the extent required by law, the Recipient’s disclosure of the Discloser’s Confidential Information will not be considered a breach of this Agreement if the Recipient promptly provides Discloser with prior notice of such disclosure (to the extent legally permitted) and reasonable assistance, at the Discloser’s cost, if the Discloser wishes to contest the disclosure. The Discloser may seek injunctive relief to enjoin any breach or threatened breach of this section, it being acknowledged by the parties that other remedies may be inadequate.
PRIVACY AND DATA PROTECTION
DWI will use commercially reasonable efforts consistent with industry standards to collect, transmit, store, protect and maintain the Data and Customer Data obtained through the Services.
“Personal Information” means any personal information about an individual, whether in paper, electronic or other form, received by DWI from Customer in connection with DWI’s performance of its obligations under the Agreement. Personal Information includes but is not limited to a person’s name, address, contact information, e-mail address, IP address, employee contact identification number, consumer preferences, marital status, salary, occupation, demographic information, image, information provided by the individual in connection with its relationship with Customer and the fact that individual has a relationship with Customer. For purposes of the Agreement, Personal Information excludes nonpublic personal information provided by an individual directly to DWI so long as DWI was not collecting such information on behalf of Customer or in furtherance of completing transactions as required pursuant to the Agreement.
In connection with the Services, DWI may receive, process and store Personal Information in the United States or other jurisdictions. Personal Information received by DWI will be protected by DWI as described in Section 8.1 above. Customer will take all steps necessary to ensure that the transfer to, processing by and storage by DWI of Personal Information complies with Customer’s privacy policies and the laws and regulations applicable to Customer. In the event that notice to and/or consent of any individual is required under applicable data protection laws or Customer’s privacy policy to be obtained before transfer of Personal Information to DWI, Customer is responsible for providing such notice and obtaining free and voluntary consent of any affected individual.
“Sensitive Personal Information” has the meaning provided under applicable laws and includes an individual’s Social Security Number, financial account number, driver’s license or state-issued identification number, health or medical information, passport number, precise geolocation, racial or ethnic origin, religious or philosophical beliefs, personal health information, sexual orientation or biometrics.
Customer agrees that Customer will not under any circumstances provide or make available to DWI any Sensitive Personal Information. If Customer provides information containing Sensitive Personal Information, DWI may return such information and request that Customer strip out any Sensitive Personal Information.
Customer agrees that if it or any Customer employee or resident provides DWI with personal mobile phone numbers or personal email addresses, or both, in response to surveys or other information gathering by or on behalf of DWI, Customer has obtained such opt-in consents that are necessary and sufficient to permit DWI to contact such individuals, including by phone calls or text, without liability to DWI, its affiliates or suppliers under applicable law, including without limitation under the Telephone Consumer Protection Act or similar state or federal laws, and such opt-in consents are and will be in full force and effect unless and until withdrawn by the individual concerned.
DWI may use automatic data collection and tracking technologies to collect certain information regarding Customer’s usage of the DWI platform, including without limitation login dates and times. These technologies including analytics tools such as Google Analytics and Smartlook. Customer consents to DWI’s use of such technologies and use of the data collected for DWI’s internal business purposes.
WARRANTIES
Warranties. Each party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, will comply with all Laws. DWI warrants that during the Term of the Agreement: (1) the Service will perform materially in accordance with the Documentation; (2) the functionality of the Service will not be materially decreased; and (3) to the best of DWI’s knowledge, the Service does not contain, and DWI will not knowingly introduce, any malicious code. In the event of a breach of the warranty set forth in (1), (2) or (3), DWI will correct the non-conforming Service at no additional charge to Customer, and in the event DWI is unable to correct such deficiencies after good-faith efforts, DWI will refund Customer amounts paid attributable to the defective Service from the date DWI received such notice. Customer will use commercially reasonable efforts to notify DWI in writing no later than 30 days after identifying a deficiency, but Customer’s failure to notify DWI within that period will not affect Customer’s right to receive warranty remedies unless DWI is impaired in its ability to correct the deficiency due to Customer’s failure to notify. Notices of breaches of any warranty must be made in writing to DWI in accordance with the notice provisions of this Agreement. The remedies set forth in this section will be Customer’s exclusive remedy and DWI’s sole liability for breach of these warranties unless the breach of warranty constitutes a material breach of the Agreement and Customer elects to terminate the Agreement in accordance with Section 11.1
Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DWI MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DWI DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO THE CUSTOMER.
CERTIFICATION PROGRAM PARTICIPATION
If eligible, Customer may request to be entered as an applicant for the Certified Digitally Well Workplace™ or Certified Digitally Well University™ list published by the Digital Wellness Institute. Customer’s participation in such Certification Program will be subject to DWI’s terms and conditions for the program in effect from time to time.
TERMINATION
Termination of Agreement. If either party breaches a material term or condition of the Agreement, the other party may terminate (at its discretion) the Agreement, upon thirty (30) days’ prior written notice to the breaching party if such breach is not cured within such period. The Agreement may be terminated by a party for cause immediately (i) if the other party ceases to do business without a successor, or otherwise terminates its business operations, or (ii) if the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party. Termination is not the sole remedy under the Agreement and, whether or not termination is effected, except as limited in the Agreement, all other remedies will remain available. All provisions of the Agreement which by their nature should survive termination will survive termination, including, without limitation, warranty disclaimers, indemnity, confidential information, and limitations of liability.
Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of the Agreement, Customer’s and Customer’s users’ right to access and use the Services (and any DWI Intellectual Property) will immediately terminate, Customer and its users will immediately cease all use of the Services (and any DWI Intellectual Property), and each Party will return and make no further use of any confidential information, materials, or other items (and all copies thereof) belonging to the other Party no later than ten (10) days after the effective date of the expiration or termination of the Agreement. Notwithstanding the foregoing, after the effective date of the expiration or termination of the Agreement, Customer may continue to use any reports or other documentation provided pursuant to the Services for its own internal business purposes.
INDEMNIFICATION
DWI will defend Customer and its employees, officers, and directors (“Customer Indemnitees”), from and against any claim by unaffiliated third party that the Service, when used in accordance with this Agreement, infringes any intellectual property rights of the third party (“IP Claim”), and will indemnify and hold harmless Customer Indemnitees from and against any damages and costs finally awarded against Customer Indemnitees or agreed to by DWI in a monetary settlement (including reasonable attorneys’ fees) resulting from such claim. Notwithstanding the foregoing, DWI will have no obligations under this Section if the claim is attributable to: (1) any modification of the Service not made by DWI or its contractors; or (2) any combination or use of the Service with products or services not provided by DWI.
If an IP Clam occurs, or in DWI’s opinion is reasonably likely to occur, claim occurs in respect of which DWI has an indemnification obligation, DWI, at its expense and at its sole discretion, may, in addition to its indemnification obligations under this Agreement: (i) procure the right to allow Customer to continue to use the Service, or (ii) modify or replace the Service or infringing portions thereof to become non-infringing, or (iii) if neither (i) nor (ii) is commercially feasible, either party may terminate this Agreement, or the applicable Order Form, and refund to Customer the prorated portion of fees that Customer has prepaid for the applicable part of the Service attributable to the remaining applicable period of the Subscription Term.
Customer will defend DWI and its officers and employees (“DWI Indemnitees”) from and against any claim by a third party arising from or relating to any Customer-offered product or service used in connection with the Service, and will indemnify and hold harmless DWI Indemnitees from and against any damages and costs finally awarded against DWI Indemnitees or agreed to by Customer in a monetary settlement (including reasonable attorneys’ fees) resulting from such claim; provided, however, that Customer will have no obligations under this Section to the extent DWI is obligated to defend, indemnify and hold harmless Customer Indemnitees against any such claim pursuant to Section 12.1.
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The indemnified Party will promptly notify the indemnifying Party of any claim subject to indemnification, tender to the indemnifying Party control over the defense and settlement of the claim and render reasonable assistance to the indemnifying Party with respect to such defense and settlement. THE REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND DWI’S ENTIRE LIABILITY, WITH RESPECT TO INFRINGEMENT OR VIOLATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
LIMITATION OF LIABILITY
IN NO EVENT WILL DWI BE LIABLE FOR: (A) ANY DAMAGES ARISING OUT OF OR RELATED TO THE FAILURE OF CUSTOMER OR ITS AFFILIATES OR PERSONNEL TO PERFORM THEIR RESPONSIBILITIES; AND/OR (B) ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF USE, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DWI WILL NOT BE HELD RESPONSIBLE IF IT EITHER DELAYS PERFORMANCE OR FAILS TO PERFORM UNDER THE AGREEMENT AS A RESULT OF ANY CAUSE BEYOND ITS REASONABLE CONTROL.
IF CUSTOMER SHOULD BECOME ENTITLED TO CLAIM DAMAGES FROM DWI FOR ANY REASON IN CONNECTION WITH THE AGREEMENT (INCLUDING WITHOUT LIMITATION, FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHER TORT CLAIM OR UNDER DWI’S INDEMNIFICATION OBLIGATIONS), DWI WILL BE LIABLE ONLY FOR THE AMOUNT OF CUSTOMER’S ACTUAL DIRECT DAMAGES UP TO THE AMOUNT THAT CUSTOMER PAID DWI FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM. IN NO EVENT WILL DWI’S AGGREGATE LIABILITY OF ANY TYPE TO CUSTOMER FOR ALL CLAIMS ARISING UNDER OR RELATING TO THE AGREEMENT EXCEED THE AMOUNT OF TWELVE (12) MONTHS’ WORTH OF FEES PAID BY CUSTOMER TO DWI UNDER THE AGREEMENT IN THE TWELVE MONTHS PERIOD PRIOR TO THE EVENT FIRST GIVING RISE TO THE LIABILITY. THESE LIMITS ARE THE MAXIMUM LIABILITY FOR WHICH DWI IS RESPONSIBLE.
GENERAL
Waiver. The failure of either Party to enforce any rights under the Agreement will not be deemed a waiver of any rights.
Assignment. The Agreement may not be assigned by Customer, whether voluntarily or by operation of law, in whole or part, without the prior written consent of DWI. Any assignment without such consent is void and of no effect. The Agreement may be assigned by DWI in connection with a change of control of DWI or the sale of all or substantially all its assets. In the event of a permitted assignment, the Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
Relationship of the Parties. The Agreement does not create any agency, partnership, or joint venture relationship between the Parties.
Governing Law; Venue. The Agreement will be exclusively governed by and construed under the laws of the State of Delaware, without reference to or application of rules governing choice of laws. All disputes arising out of or related to the Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Wilmington, Delaware and each Party hereby consents to such jurisdiction. However, DWI may apply to any court or tribunal worldwide, including but not limited to those having jurisdiction over Customer to seek injunctive relief. THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING UNDER THE AGREEMENT.
Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement will remain in full force and effect.
Amendments. Once executed, the Agreement, and any individual Order Form may be modified only through the execution of a written instrument signed by the Parties specifically referencing the Agreement. DWI may without restriction publish or otherwise distribute a new or updated version of these Terms, provided that the Terms in effect as of the effective date of an Order Form with Customer will apply for the term of the applicable Order Form unless otherwise specifically agreed by execution of a written instrument signed by the Parties.
Use of Names/Logo. Customer may request permission for the use of the Digital Wellness Institute, Certified Digital Wellness Educator,Certified Digitally Well Worker, Certified Digitally Well Workplace, or Certified Digitally Well Universit logo, and in doing so, should request to fill out and complete the “Use of Digital Wellness Institute’s Materials Consent Agreement” (the “Material Consent Form”). Customer understands that it is subject to all rules and guidelines set forth in the Material Consent Form, which govern the usage of the Digital Wellness Institute logo. DWI may include Customer’s name and logo on a client list, unless Customer notifies DWI otherwise.
Legal Fees. If any action at law or in equity is necessary to enforce or interpret the Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such Party may be entitled.
Counterparts. An Order Form may be executed in two or more counterparts, each of which will be deemed an original and all of which together with these Terms will constitute one agreement.
Order of Precedence. In the event of any conflict between or among the provisions contained in the Agreement, the following order of precedence will govern: (i) these Terms, and (ii) the applicable Order Form, except that the Order Form will govern to the extent that it specifically refers to and expressly states that it is amending these Terms.
Notice. All notices required to be given under the Agreement will be in writing and will be sent to the respective address of the Party in the most current Order Form in effect, or to such other person or address as each Party may designate by notice given in accordance with this Section. Any notice under the Agreement may be delivered by hand or express courier and will be deemed to have been received: (i) by hand delivery, at the time of delivery; or (ii) by express courier, on the second business day after delivery to the carrier. If an email address is provided for a Party, a copy must also be sent via email, but such copy is for convenience only and the effective time of notice will be calculated as provided in the second sentence of this Section.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter. Except as expressly provided in this Agreement, this Agreement supersedes and cancels all previous written and previous or contemporaneous oral communications, proposals, representations, and agreements relating to the subject matter contained in this Agreement. This Agreement prevails over any pre-printed terms or other conflicting or additional terms of any purchase order, ordering document, acknowledgement, click through agreement or terms, or confirmation or other document issued or made available by Customer, even if signed and returned or otherwise accepted.
Federal Government End Use Provisions (if applicable). DWI provides the pre-existing, commercial Service, including related software and technology, for federal government end use solely in accordance with the terms and conditions of this Agreement, and DWI provides only the technical data and rights as provided herein. If a government agency has a “need for” rights not conveyed under these terms, it must negotiate with DWI to determine whether there are acceptable terms for transferring additional rights. A mutually acceptable addendum specifically conveying such rights must be executed by the parties in order to convey such rights beyond those set forth herein. For avoidance of doubt, DWI does not currently provide the Service for use in furtherance of a federal prime or subcontract.
Export. Each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the generality of the foregoing, Customer will not make the Service available to any person or entity that: (1) is located in a country that is subject to a U.S. government embargo; (2) is listed on any U.S. government list of prohibited or restricted parties; or (3) is engaged in activities directly or indirectly related to proliferation of weapons of mass destruction.
No Third-Party Beneficiaries. The Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party (other than as described in Section 12 (Indemnification)). Only the Parties to the Agreement may enforce it.
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