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Terms of Use
Effective Date - October 6, 2023
By accessing or using any of the services, including the following applications: AppWell, TimeWell, and any other applications or sites linked to these terms you agree to these terms and conditions of use ("Terms of Service").
If you are using any service as an employee, agent, or contractor of a corporation, partnership or similar entity, then you represent and warrant that you have the authority to bind such an entity in order to accept the terms of these Terms of Service. The rights granted under these Terms of Service are expressly conditioned upon acceptance by such authorized personnel.
Modifications to these Terms of Service: From time to time, AppWell may modify these Terms of Service. Unless otherwise specified by AppWell, changes become effective for Customer upon renewal of the then-current Subscription Term or entry into a new Service Order Form after the updated version of these Terms of Service goes into effect. AppWell will use reasonable efforts to notify Customer of the changes through communications via Customer's Account, email or other means.
The "Effective Date" of these Terms of Service is the date which is the earliest of (a) Customer's initial access to any Service through any online provisioning, registration or order process or (b) the effective date of the first Service Order Form, as applicable, referencing these Terms of Service. These Terms of Service will govern Customer's initial purchase on the Effective Date as well as any future purchases made by Customer that reference these Terms of Service.
By accessing the services you agree to the following:
1. Provision of Service
AppWell will make the Services and Software available to Customer pursuant to these Terms of Service, the Supplemental Terms (where applicable), the applicable Service Order Form, and the Documentation, and provide such Services in accordance with these Terms of Service, including the Data Processing Addendum ("DPA") (where applicable), AppWell's Privacy Policy, and laws and government regulations applicable to AppWell' business, during each Subscription Term. During the Subscription Term, AppWell grants to Customer a limited, non-exclusive right to access and use the Services and Software only for its internal business purposes, for up to the number of Users included in the Service Plan or otherwise noted in the Service Order Form, including the right to download, install and use the Mobile Apps in connection with the authorized use of the Services.
2. Responsibilities of Customer
a. Customer Account. A Customer may need to register for an Account in order to place orders or access or receive the Services. Customer agrees to keep its Account information current, accurate and complete so that AppWell may send notices, statements and other information to Customer via email or through its Account, which notifications will be subject to these Terms of Service and the Privacy Notice. Customer will be responsible for maintaining the confidentiality of User login information and credentials for accessing the Services and will notify AppWell promptly of any loss, misuse, or unauthorized disclosure of such login information and/or credentials of which Customer becomes aware. AppWell and its affiliates will not be liable for any damage or loss that may result from Customer's breach of the foregoing obligations.
b. Use Restrictions. Customer agrees not to use the AppWell Technology (as defined below) to: (i) process data on behalf of any third party other than Customer's Users and End Users; (ii) use the Service or AppWell Technology in violation of applicable law (iii) store or transmit any content that infringes upon any third party's intellectual property rights;
In addition, Customer will not: (iv) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the AppWell Technology available to any third party other than Users and End Users, and then only in furtherance of its permitted business purposes as expressly permitted by these Terms of Service; (v) track cookies, ad exchanges, ad networks, data brokerages, or to send electronic communications (including e-mail) in violation of applicable law ; (vi) falsely imply any sponsorship or association with AppWell; (vii) decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any portion of AppWell Technology.
3. Customer Data
a. Use of Customer Data. As between the parties, Customer and its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the AppWell Technology. Subject to the terms of these Terms of Service, Customer hereby grants to AppWell and its affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the Services, Software, Mobile Apps, and perform all related obligations owed to Customer under these Terms of Service, or as may be required by law. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to AppWell under these Terms of Service. Customer agrees not to upload any Customer Data containing electronic patient health records or information ("ePHI") unless Customer has entered into a business associate agreement with AppWell, which will govern the parties' respective obligations with respect to any ePHI uploaded by Customer to the Services, Software, or Mobile Apps ("BAA"). Upon mutual execution of a BAA, the BAA is incorporated by this reference into these Terms of Service and is subject to its terms. If Customer is permitted to submit ePHI data into the Service, Software or Mobile App, then Customer may submit such data to AppWell and/or the Service only by uploading it as Customer Data. Unless a BAA is in place, AppWell will have no liability under these Terms of Service for ePHI supplied by Customer or any User or End User, notwithstanding anything to the contrary in these Terms of Service or in HIPAA or any similar federal or state laws, rules or regulations.
b. Data Security. The parties will comply with the terms of the DPA, which is incorporated into these Terms of Service by this reference, with respect to the provision and processing of Personal Data as defined in the DPA. AppWell will use appropriate technical and organizational measures in the Services to protect the Customer Data from unauthorized access, processing, loss, or disclosure. AppWell measures are designed to provide a level of security appropriate to the risk of processing the Customer Data within the Services. Customer understands that AppWell and its affiliates will process Customer Data in accordance with applicable data protection laws, these Terms of Service, including the DPA., and the Privacy Notice.
4. Intellectual Property
a. Ownership Rights. Customer Data is Customer's Confidential Information under these Terms of Service. Customer and its licensors retain all right, title and interest in and to the Customer Data and all of Customer's Confidential Information provided under these Terms of Service, and AppWell obtains no rights in the foregoing except for the express rights granted in these Terms of Service and the Privacy Notice. AppWell and its licensors retain all right, title, and interest in and to AppWell Technology. Customer acknowledges that the Services are offered as online, hosted solutions, and that Customer has no right to obtain a copy of the underlying computer code for any Services, except (if applicable) for any downloadable Software, in object code format. AppWell may freely use and incorporate into AppWell' products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users or End Users relating to AppWell' products or services. Feedback and any other suggestions are provided by Customer exclusively "AS IS," in Customer's sole discretion, and will not be used by AppWell in any way that identifies or permits identification of Customer, its affiliates, Users, or End Users.
b. Usage Data. Usage Data includes but is not limited to query logs, and any data (other than Customer Data) relating to the operation, support and/or about Customer's use of the Services, Software, AppWell' websites, AppWell' APIs, or the AppWell marketplace ("Usage Data"). Notwithstanding anything to the contrary in these Terms of Service, AppWell may collect and use Usage Data to develop, improve, support, and operate its products and services. AppWell may share Usage Data that includes Customer's Confidential Information with third parties to the extent necessary to provide the Service and in accordance with Section 8 (Confidentiality) of these Terms of Service. AppWell may also utilize Customer Data for its internal business purposes if such Customer Data is aggregated and anonymized such that Customer and Customer's Users and End Users cannot be identified.
c. Updates. AppWell may update the Services and Software from time to time and Customers may receive notifications of Updates. Any Updates to the Services and Software are subject to these Terms of Service. Customer agrees that its purchase of the Services and Software is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by AppWell with respect to future functionality or features.
d. Other Services. AppWell or other third parties may make available other third-party products or services ("Third-Party Services"). These Third Party Services may integrate with the Services and are not licensed by AppWell pursuant to these Terms of Service. Third-Party Services are governed by the third party provider's terms and conditions and privacy policies that accompany them, which Customer must separately accept. AppWell does not warrant or support Third Party Services, unless expressly provided otherwise in an Service Order Form. AppWell is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such a third party. The Service may contain features designed to interoperate with Third Party Services. Customer understands that AppWell is not responsible for providing technical support for the Third Party Services and that AppWell is not responsible for the data hosting and data transfer practices followed by the providers of such Third-Party Services.
5. Fees and Payment
a. Fees and Payment. All charges associated with Customer's Account ("Fees") are set forth in the applicable Website or Service Order Form. For credit card payments, the payment is due immediately upon sign up as described below. For payments through other accepted methods, payment is due and payable in full within thirty (30) days from the invoice date or as stated in the applicable Service Order Form. Payment obligations are non-cancelable, regardless of utilization by the Customer and except as expressly permitted in these Terms of Service, Fees paid are non-refundable. Customers will pay the Fees through an accepted payment method as specified in the applicable Website or, if applicable, on a Service Order Form.
b. Automatic Renewals of Subscriptions. Unless otherwise noted in the terms of your offer, subscriptions automatically renew. This means that once you sign up for a free trial or become a subscribing customer, your subscription will automatically renew based on the subscription program you chose (e.g. semiannually, monthly, etc.). Unless you are notified otherwise, you will be charged the rate stated at the time of purchase (plus applicable taxes when the stated rate does not include such taxes, such as value added tax) at the beginning of the billing term of your subscription via the billing method you have provided to us. Please ensure that your billing information is correct to prevent an interruption in your subscription. Prices and terms for subscriptions may change at any time. The price and terms in place when you made your initial purchase or when your subscription last renewed will stay in effect for the duration of that subscription period, but new prices and terms may apply to renewals or new subscriptions. Appwell will give you reasonable notice of any change in price or terms before they go into effect. If you do not want to renew your subscription under these new prices or terms, you should cancel your subscription as described below. During the Subscription Term, the Customer shall not reduce their Service Plan or User count.
c. Subscription Cancellations. You may cancel your subscription by contacting us at support@appwell.io. Subscriptions may be canceled at any time prior to ten business days before your renewal date. If you cancel your subscription, you will retain access to your Services for the remainder of the subscription period that you have paid for. If you do not cancel your subscription within your subscription period, we will renew your subscription \until you cancel.
d. Free Trials: Some of the Services allow you to register for a free trial so you can try the Services before starting a paid subscription (each a "Free Trial"). If you register for a Free Trial, you may cancel at any time prior to the end of the Free Trial time period (the "Free Trial Period") and incur no charge. If you do not cancel by that time, your paid subscription will start once your Free Trial Period ends. One Free Trial per user. After a Free Trial ends and you are charged for your subscription, no refunds will be issued, except as outlined herein. This does not affect your statutory rights. For users located in the European Union, your free trial is inclusive of your cooling off rights and your right to withdraw from the contract.
e. Stripe payments. Appwell may use a third-party payment processor (the "Payment Processor") to bill Customers through a payment account linked to a Customer's billing account for use of the Services. The processing of payments through a Payment Processor will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement.
Appwell currently uses Stripe, Inc. as its Payment Processor. Customers can access Stripe's Terms of Service at https://stripe.com/legal/link-account-terms and their Privacy Policy at https://stripe.com/us/privacy . Appwell is not responsible for any error or mistake by or between the Payment Processor and Customer. By choosing to use the Services, Customer agrees to pay Appwell, through the Payment Processor, all charges at the prices then in effect for any use of the Services in accordance with the applicable payment terms, and Customer authorizes Appwell, through the Payment Processor, to charge Customer's chosen payment provider (Customer's "Payment Method"). Customer agrees to make payment using one of the selected Payment Methods.
f. Applicable Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessed by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). Customer agrees to pay applicable direct or indirect Taxes associated with its purchases hereunder, which, to the extent AppWell is legally required to collect the same, will be itemized on the AppWell invoice. If Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), Customer will gross up the payments so that AppWell receives the amount actually quoted and invoiced. If AppWell has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced and paid by the Customer, unless, prior to the invoice date, the Customer provides AppWell with a valid tax exemption certificate authorized by the appropriate taxing authority. Additional information on how AppWell may apply tax requirements can be requested from support@appwell.io.
g. Orders by affiliates. Customer's affiliates may purchase Services directly from AppWell by executing an Service Order Form which is governed by the terms of these Terms of Service. Such Service Order Form will establish a new and separate agreement between the Customer's affiliate and the AppWell entity signing such Service Order Form. If the affiliate resides in a different country than Customer, then the Service Order Form may include modifications to terms applicable to the transaction(s) (including but not limited to tax terms and governing law).
h. Late Payments. If undisputed Fees are more than thirty (30) days overdue, then, following written notification from AppWell, AppWell may suspend Customer's access to the AppWell Technology, including, without limitation, Customer's Account, until such unpaid Fees are paid in full. AppWell will not exercise its rights herein with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party will have the right to seek any remedies it may have under these Terms of Service, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
6. Term, Termination and Suspension
a. Term. These Terms of Service are effective as of the Effective Date and will continue through the then-current Subscription Term. Service Plans commence on the start date specified in the relevant Service Order Form (or, for online Customers, the date of sign up on the Website) and continue for the Subscription Term specified therein.
b. Renewal. Unless a party gives written notice of non-renewal at least ten (10) business days prior to the expiration of the relevant Subscription Term, Service Plans will automatically renew for a period equal to the previous Subscription Term. For Free Trials, you must cancel before the end of the Free Trial Period. AppWell reserves the right to increase the Fees at the beginning of each Subscription Term, including any automatically renewed term. Any Fees for a renewed Subscription Term are due upon the date of renewal.
c. Suspension. AppWell may suspend Customer's access to the Services, Software, Mobile Apps and/or Customer's Account, on the following grounds: (i) late payment/non-payment of undisputed Fees, per the process noted in Section 5(b) above; (ii) non-renewal of the Services by Customer; (iii) Customer's or its Users' breach of Section 2 (Use Restrictions); or (iv) in the event suspension is deemed necessary by AppWell to prevent or address the introduction of Malicious Software (as defined in Section 9.b below), a security incident, or other harm to Customer, AppWell, or AppWell' other customers. AppWell will notify Customer of any such suspension. AppWell will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Users or AppWell Technology, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved. Such suspension will in no way affect Customer's other obligations under these Terms of Service.
d. Free Trial Customers. Upon the expiration of Customer's free trial, AppWell may immediately suspend Customer's access to the Services. Customer must export Customer Data before the end of the free trial or Customer Data will be permanently deleted. Notwithstanding anything to the contrary in these Terms of Service AppWell will have no obligation to maintain, store or otherwise retain Customer Data beyond the end of the free trial period.
7. Data Export and Retention
Upon termination or expiration of these Terms of Service or any Service Order Form for any reason, Customer's access to the Services, Software, Mobile Apps, APIs and other AppWell Technology will terminate. AppWell strongly recommends that Customer export all Customer Data before Customer closes Customer's Account. AppWell will make Customer Data available for export for seven (7) days from the effective date of the closure of the Customer's Account due to: (i) the termination or expiration of these Terms of Service, or (ii) termination or expiration the applicable Service Order Form ("Data Export Period").Where Customer Data is retained by AppWell and can be exported, and provided that Customer is current on its payment obligations as described in Section 5, Customer may contact AppWell within the Data Export Period to have AppWell export Customer's Customer Data. Beyond such Data Export Period, AppWell reserves the right to retain Customer data for up to three (3) months before deleting all Customer Data in the normal course of operation except as necessary to comply with AppWell legal obligations, maintain accurate financial and other records, resolve disputes, and enforce its agreements. Customer Data cannot be recovered once it is deleted. Customers may contact support@appwell.io within the Data Export Period to export Customer Data.
8. Confidentiality
Each party will protect the other's Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms of Service, the receiving party may use the disclosing party's Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms of Service, and will disclose such Confidential Information solely (i) to those of its respective employees, representatives, and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information; (ii) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (iii) as reasonably necessary to comply with any applicable law or regulation. The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to these Terms of Service that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
9. Warranties/Disclaimer of Warranties
a. Service Warranty. AppWell warrants that the Services, Software or Mobile Apps will perform in all material respects in accordance with the Documentation. Provided that Customer provides written notice of a claim within thirty (30) days after first becoming aware of a breach of the foregoing warranty, AppWell will use diligent efforts to correct the Services, Software, or Mobile Apps so the foregoing warranty is met, and if AppWell is unable to make such corrections in a timely manner, either party may terminate the applicable Service Order Form, and Customer, as its sole and exclusive remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Services, Software or Mobile Apps purchased thereunder. This warranty will not apply if the error or non-conformance was caused by Customer's breach of these Terms of Service or Customer's or its Users' misuse of the Services, Software, and Mobile Apps, modifications to the Services, Software, and Mobile Apps by anyone other than AppWell or its representatives, or third-party hardware, software, or services used in connection with the Services, Software, and Mobile Apps.
b. Malware Warranty. AppWell warrants that the Services hosted by AppWell will be monitored using commercially available means to attempt to detect and prevent the introduction of any computer instructions, circuitry or other technology means whose purpose or effect is to disrupt, damage or interfere with the authorized use of, or allow access to, the computer and communications facilities or equipment of AppWell or Customer, including, without limitation, any code containing viruses, Trojan horses, worms, backdoors, trap doors, time-out devices or similar destructive or harmful code or code that self-replicates (collectively, "Malicious Software").
Warranty Disclaimer. Except as expressly outlined in these Terms of Service, neither party makes any other warranties, express or implied, statutory or otherwise. All such warranties are disclaimed, including but not limited to warranties of merchantability, title, fitness for a particular purpose, or non-infringement.
10. Limitation of Liability
a. Subject to applicable law and notwithstanding anything else in these Terms of Service, neither party shall be liable for special, incidental, indirect, or consequential damages (including downtime costs, loss of data, restoration costs, lost profits, or cost of cover) regardless of whether such claims are based on contract, tort, warranty or any other legal theory.
b. Except for an action brought for gross negligence, willful misconduct, fraud, data claims, or IP Claims, each party's aggregate liability and that of its affiliates, officers, employees, agents, suppliers, and licensors, under these Terms of Service will not exceed the fees received by or payable to AppWell in the twelve months preceding the claim ("the general liability cap").
c. In the case of IP Claims and data claims, AppWell and its affiliates' total liability to the customer and its affiliates for all such claims in the aggregate (for damages or liability of any type) will not exceed two times (2x) the general liability cap ("SuperCap").
d. Neither party (or its respective affiliates) shall be liable for the same event under both the general liability cap and the SuperCap. Additionally, the foregoing caps will not be cumulative; if a party (and/or its affiliates) has one or more claims subject to each of those caps, the maximum total liability for all claims in the aggregate will not exceed the applicable cap.
e. The parties agree that this section 10 will apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, and will apply even if any limited remedy specified in these Terms of Service is found to have failed of its essential purpose. The applicable monetary caps set forth in this section 10 will apply across these Terms of Service and all separate agreement(s) on an aggregated basis, without regard to whether any individual customer affiliates have executed a separate Service Order Form.
11. Indemnification
a. Indemnification by AppWell. AppWell will defend Customer and its affiliates, from any third party claim alleging that Customer's use of the AppWell Technology as contemplated hereunder infringes such third party's patent, copyright and/or trademark intellectual property rights (an "IP Claim"), and will indemnify and hold harmless Customer and its affiliates from and against any damages and costs awarded against Customer or its affiliates, or agreed in settlement by AppWell (including reasonable attorneys' fees) resulting from such IP Claim. AppWell will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the AppWell Technology by Customer, its affiliates or Users; (ii) modification of the AppWell Technology by anyone other than AppWell or its representatives; or (iii) the combination, operation or use of the AppWell Technology with other data, hardware or software not provided by AppWell. If Customer's use of the AppWell Technology results (or in AppWell' opinion is likely to result) in an IP Claim, AppWell may at its own option and expense (a) procure for Customer the right to continue using the foregoing items as set forth hereunder; or (b) replace or modify them to make them non-infringing. If options (a) or (b) are not commercially reasonable as determined by AppWell, then either Customer or AppWell may terminate Customer's subscription to the Service, whereupon AppWell will refund Customer, on a prorated basis, any Fees Customer has previously paid AppWell for the corresponding unused portion. Section 10 of these Terms of Service AppWell' entire liability and Customer's exclusive remedy with respect to an IP Claim.
b. Indemnification by Customer. Customer will defend AppWell and its affiliates from any third party claim ("Claim"), and will indemnify and hold harmless AppWell and its affiliates from and against any damages and costs awarded against AppWell and its affiliates, or agreed in settlement by Customer (including reasonable attorneys' fees) resulting from such Claim, to the extent caused by: (i) Customer's or its affiliate's unauthorized supply, disclosure, or processing of Customer Data, including Personal Data therein, (ii) Customer's or its affiliates violation of laws applicable to Customer's or its affiliates business.
c. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 11, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party's sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party's expense. Failure by the indemnified party to notify the indemnifying party of a claim under this section will not relieve the indemnifying party of its obligations under this Section, however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party's prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section 11 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party's prior written consent.
12. Miscellaneous
a. Use of Third Parties for Payment Processing. AppWell may use a third-party service provider to manage payment processing provided that such service provider is not permitted to store, retain, or use Customer's payment account information except to process Customer's payment information for AppWell. Customers must notify AppWell of any change in Customer's payment account information, either by updating Customer's Account or by emailing AppWell at support@appwell.io.
b. 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 these Terms of Service in its entirety (including all Service 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. Any attempted assignment in violation of this section will be null and void.
c. Entire Agreement. these Terms of Service, together with any Service Order Form, the Privacy Notice, and Supplemental Terms, constitutes the entire agreement and supersedes any and all prior agreements or communications between Customer and AppWell, including but not limited to Customer registration forms and Purchase Orders, regarding the subject matter hereof. In the event of a conflict between the Privacy Notice, the Supplemental Terms, or any Service Order Form and these Terms of Service, the order of precedence will be, first, the Privacy Notice, second, the Service Order Form, third, the Supplemental Terms, and fourth, these Terms of Service. If any provision in these Terms of Service is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision, and the remaining provisions of these Terms of Service will remain in effect.
d. Publicity Rights. AppWell may identify Customer as an AppWell customer in its promotional materials. Customer may request that AppWell stop doing so by submitting an email to support@appwell.io at any time. Please note that it may take us up to thirty (30) days to process a request.
e. Relationship of the Parties. The parties are independent contractors. These Terms of Service do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
f. Survival. Sections 2.b (Use Restrictions), 4 (Intellectual Property), 5 (Fees and Payment), 6 (Term, Termination and Suspension), 8 (Confidentiality), 9.c (Warranty Disclaimer), 10 (Limitation of Liability), 11 (Indemnification), 12.c (Entire Agreement), 12.f (Survival), 12.g. (Notices), 11.j (Governing Law) and 12.k (Dispute Resolution) and 13 (Definitions) will survive any termination of the Agreement. Termination of these Terms of Service will not limit either party's liability for obligations accrued as of or prior to such termination or for any breach of these Terms of Service.
g. Notices. All notices to be provided by one party to the other under these Terms of Service may be delivered in writing by (i) nationally recognized overnight delivery service or US mail to the mailing address provided on the Service Order Form; or (ii) electronic mail to the e-mail address provided for Customer's Account. The address for a notice to AppWell is: AppWell Inc., 2950 S. Delaware Street, Suite 201, San Mateo, CA 94403 with a copy to legal@appwell.io by electronic mail. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail or with a courier as permitted above.
h. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with these Terms of Service. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify AppWell at legal@appwell.io.
i. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms of Service if the delay or failure results from any cause beyond such party's reasonable control, including but not limited , acts of God, acts of government, acts of terror or civil unrest, Internet failures, or acts undertaken by third parties not under the performing party's control, including, without limitation, denial of service attacks ("Force Majeure Event"). In the event that a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate these Terms of Service and all Service Order Forms on written notice to the non-performing party. If AppWell is the party experiencing the Force Majeure Event and as a result thereof is unable to provide the Services, Software or Mobile Apps for the period noted herein, and Customer terminates these Terms of Service and all Service Order Forms, then AppWell will provide Customer a refund of fees paid by Customer prorated as of the date the Force Majeure Event commenced.
j. Governing Law. These Terms of Service are governed by the laws of the State of California without regard to conflict of laws principles. The parties hereby submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, San Francisco County for any claims or dispute relating to these Terms of Service.
k. Dispute Resolution. Any dispute, claim or controversy arising out of or relating to these Terms of Service or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of these Terms of Service to arbitrate, will be determined by arbitration in San Francisco, California. The arbitration will be administered by JAMS pursuant to its arbitration rules and procedures. Judgment on the Award may be entered in any court having jurisdiction. This section will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
l. Export Compliance and Use Restrictions. The Services and other Software or components of the Services which AppWell may provide or make available to Customer or Users may be subject to U.S. (or other territories) export control and economic sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce's Bureau of Industry and Security ("BIS") and the U.S. Department of the Treasury's Office of Foreign Assets Control ("OFAC") (collectively, "Export Control Laws"). Customer agrees to comply with all the Export Control Laws as they relate to access to and use of the Services, Software, and such other components by Customer and Users. Customer shall not access or use the Services if Customer is located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations, including, without limitation, a country or territory that is subject to comprehensive U.S. trade sanctions (including Crimea, Cuba, Iran, North Korea, and Syria) (a "Prohibited Jurisdiction") and Customer shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. Customer represents, warrants and covenants that (i) Customer is not named on, or owned or controlled by any party named on any U.S. government (or other government) list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) Customer is not a national of, located in, or a company registered in, any Prohibited Jurisdiction, (iii) Customer shall not permit Users to access or use the Service in violation of any Export Control Laws, (iv) no Customer Data created or submitted by Customer is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws, and (v) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer and Customer's Users are located. Customer further agrees that Customer will not use the Services to disclose, transfer, download, export or re-export, directly or indirectly, any Customer Data to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which Customer may be subject. Customer acknowledges that the Service and other Software may not be available in all jurisdictions and that Customer is solely responsible for complying with the Export Control Laws.
m. Federal Government End Use Restrictions. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a "Commercial Item" as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Service is licensed to Customer with only those rights as provided under the terms and conditions of these Terms of Service.
13. Definitions
"Account" means any accounts or instances created by or on behalf of a Customer for access to and use of any of the Services.
"Confidential Information" means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as "confidential" (or with a similar legend), or which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.
"Customer Personal Data" means, all electronic data, text, messages or other materials, including, without limitation, Personal Data of Users and End Users, submitted to the Services by Customer or its Users through Customer's Account in connection with Customer' use of the Services.
"Data Claims" means any claims arising from either (a) a party's breach of Section 3 (Customer Data), Section 8 (Confidentiality), the DPA, the BAA (if applicable), or the, Privacy Notice where such breach results in the unauthorized disclosure of Customer Data, or (b) breach of Section 2 (b) (Use Restrictions).
"Data Processing Addendum" or "DPA" means, AppWell' Data Processing Addendum as updated from time to time.
"Documentation" means, the then-current, generally available user documentation provided by AppWell detailing the functionalities of the Software and the Services.
"End User" means, any person or entity other than Customer or Customer's Users with whom Customer interacts using the Services.
"AppWell Technology" means, (i) the Services, Software, Mobile Apps, Documentation, AppWell' APIs, AppWell' website(s) and any content published on the AppWell' websites, (ii) any training materials, support materials, templates, tools, methodologies or know-how, (iii) AppWell' Confidential Information and (iv) any modifications or derivative works of the foregoing.
"Mobile App" means the AppWell-branded Software applications provided by AppWell to enable access and use of the Services through mobile or other handheld devices (such as apps on iOS or Android devices).
"Personal Data" means, data relating to an individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under applicable data protection laws).
"Privacy Notice" means, AppWell' privacy notice currently at www.appwell.io/privacy, as updated from time to time.
"Service Order Form" means, (i) any service order referencing these Terms of Service and executed by Customer and AppWell, or (ii) any online ordering document or process completed by Customer, including any online registration through a Website, each of which detail, the Services subscribed to and corresponding Service Plans, the number of Users authorized to use the Services, Fees payable to AppWell, the applicable Subscription Term, and any relevant additional terms and conditions. This may also include any change order forms.
"Services" means, the AppWell software-based service offerings identified on the Service Order Form and any Updates, including any Software, API or Documentation made available by AppWell with such offering, but excludes any applications or APIs separately provided by third parties.
"Service Plans" means, the pricing plans and other packaged offering limitations for and the applicable Services for which Customer subscribes with respect to any User.
"Software" means the generally available software provided by AppWell in connection with Customer's use of the Services, and includes Mobile Apps, but excludes any applications or APIs that are provided by third parties.
"Subscription Term" means the period stated on a Service Order Form during which Customer subscribes to the Services.
"Supplemental Terms" means any Services specific terms. For more information, please contact us at legal@appwell.io.
"Update" means, the generally available updates, upgrades, hot fixes, patches, workarounds to the Software or Service provided by AppWell to all subscribing customers, but excludes separately priced new products or modules.
"User" or "Agent" means, any individual who is authorized by Customer to use the Services, including an Account administrator, employees, consultants, contractors, and agents of Customer or its affiliates, and third parties with which Customer or its affiliates transact business.
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