Artera’s Terms of Service

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Effective Date: November 2, 2023

For the prior version (for reference only), please click here

BY INDICATING ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY SERVICES. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU. IF YOU ARE USING ANY SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

Modifications to this Agreement: From time to time, Artera may modify this Agreement. Unless otherwise specified by Artera, changes become effective for Customer upon renewal of the then-current Subscription Term or upon the effective date of a new Order Form after the updated version of this Agreement goes into effect. Artera will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or upon the effective date of a new Order Form, and in any event continued use of any Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service (as defined below) through any online provisioning, registration or order process; or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer through an Order Form that reference this Agreement.

These Subscription Terms and Conditions (the “Agreement”) are entered into by and between WELL Health d/b/a Artera, a Delaware Corporation (“Artera” or “Company”) and the entity or person (other than a Reseller) identified on the Artera ordering documentation (“Order Form”) referencing this Agreement (“Customer”). This Agreement consists of the terms and conditions set forth below and any attachments, addenda, or exhibits referenced in this Agreement, and any Order Forms issued pursuant to this Agreement.

1. SAAS SERVICES AND SUPPORT
   1. Provision of Services: Company will use commercially reasonable efforts to provide Customer the Services as described in the Order Form (Exhibit A) and in accordance with the Service Level and Support Agreement (Exhibit B), subject to the terms and conditions of this Agreement and the Artera Outreach Definitions (Exhibit C).
   2. License: Subject to the terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive, non-sublicensable, non-transferable, license to use Software during the Term and only in connection with the Services.
   3. Technical Support: Subject to the terms hereof, Company will use commercially reasonable efforts to provide technical support services to Customer in accordance with the Service Level and Support Agreement (Exhibit B).
   4. Implementation Services: Company will use commercially reasonable efforts to provide Customer the Implementation Services described in this Agreement and a separate Statement of Work in order to implement and integrate Company’s existing text and messaging apps according to the terms and conditions set forth in this Agreement (the “Implementation Services”).
   5. Implementation Services Travel Expenses: Customer will be responsible for payment and/or reimbursement to Company for any travel and living expenses related to Implementation Services performed at any Customer location and/or third-party location agreed upon by the parties, at the written request of Customer. Should Customer cancel a training session or other event requiring travel after travel reservations have been made, Customer will be responsible for all non-refundable charges, as well as any cancellation fees and/or penalties that may apply. Additionally, Customer will be responsible for payment and/or reimbursement to Company for the following (if applicable): (i) optional products and services, (ii) shipping charges, (iii) consulting, (iv) cancellation fees imposed upon Company by third parties, (v) travel time, and (vi) courier services. For travel time to or from Customer location, Company agrees not to charge more than the equivalent of ¼ of a service hour, based on its standard hourly rates at that time, for each hour actually spent traveling by Company’s personnel to and from Customer location. Customer will pay such reimbursements and costs in accordance with the payment terms set forth herein. In no event shall such reimbursements to Company be withheld for any reason, including for offset or fee dispute.
   6. Changes to Services: Company reserves the right to, in its sole discretion, make any changes to the Services to (a) comply with any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government, or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction (“Law”) or, when necessary or useful, (b) maintain or enhance (i) the quality or delivery of Company’s services to its customers, (ii) the competitive strength of or market for Company’s services, or (iii) the Services’ cost efficiency or performance.
   7. Project Change Request: Customer may request changes to the scope of the Services or Implementation Services described in an Order Form by submitting a project change request (a “PCR”) to Company describing the desired change, the rationale for the change, and the effect the change will have on the project. Company will review the PCR and either approve or reject the PCR. If the PCR is approved, Company will inform Customer of any charges for the change requested via the PCR and any effect the implementation of the PCR will have on fees, schedule, or other terms of this Agreement and/or associated Order Form(s). The parties will review the impact of the proposed change and, if mutually agreed upon, both parties will sign the PCR. A written PCR must be signed by both parties to authorize implementation of the PCR. Company will invoice Customer for charges described in this paragraph and Customer shall pay the invoices pursuant to the terms of this Agreement.
2. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES
   1. Customer Restrictions: For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits: (a) directly or indirectly, permit any other person to, access or use the Services except as expressly permitted by this Agreement and, in the case of Third Party Materials, the applicable third-party license agreement (b) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to, in whole or in part, the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation, or data related to the Services (“Software”); (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Software to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (d) copy, modify, translate, or create derivative works or improvements of the Services or Software; (e) bypass or breach any security device or protection used by the Services or Software, (f) access or use the Services or Software, other than by an Authorized User (defined below) through the use of his or her own then valid access credentials; (g) input, upload, transmit, or otherwise provide to or through the Services or Software, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, worm, malware, or other malicious computer code, or other technology, which permits unauthorized access to, or destroys, disrupts, disables, distorts, or otherwise harms or impedes in any manner any computer, software, firmware, hardware, system, or network, or any application or function of any of the foregoing, or the security, integrity, confidentiality, or use of any data processed thereby; (h) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Company systems/infrastructure, or Company’s provision of services to any third party, in whole or in part; (i) remove, delete, alter, or obscure any trademarks, specifications, warranties or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Software, including any copy thereof; (j) access or use the Services or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Company customer), or that violates any applicable Law; or (k) access or use the Services or Software for purposes of competitive analysis of the Services or Software, the development, provision, or use of a competing software service or product, or any other purpose that is to the Company’s detriment or commercial disadvantage.
   2. U.S. Government Terms: Customer agrees (a) to abide by any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority; (b) that the Services qualify as a “commercial product” as defined by FAR Section 2.101; (c) that the Services qualify as a “commercial computer software” and “commercial computer software documentation” as defined by DFAR Sections 252.227-7014(a)(1) and (5); and (d) that, in accordance with DFAR Section 227.7202 and FAR Section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. This License is provided in accordance with FAR section 12.211 and FAR section 12.21 and, for Department of Defense transactions, with DFAR section 252.227-7015 and DFAR section 227.7202-3.
   3. Customer Account: Customer may authorize employees to use the Services (each an “Authorized User” and shall ensure each Authorized User uses the Services subject to this Agreement. As part of the registration process, Customer will identify an administrative owner for Customer’s Company account. Customer shall, throughout the Term (as defined below), ensure that its administrative owner has the capacity and authority to serve as Customer’s primary point of contact for day-to-day communications, consultation, and decision-making regarding the Services. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate. Customer shall be responsible for maintaining the security of the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account.
   4. Equipment: Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of Equipment and for all uses of Equipment.
   5. Customer Failure: Company shall not be responsible or liable for any delay or failure of performance of Services caused in whole or in part by Customer’s failure or delay to perform any of its obligations under this Agreement (each a “Customer Failure”).
3. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
   1. Intellectual Property Rights: Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to, the Services, Software, or Third-Party Materials (as defined below), whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, Software, and Third-Party Materials are and will remain with the Company and the respective rights holders in the Third-Party Materials. For the purposes of this Agreement, “Third-Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Company.
   2. Confidential Information: Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information to the other party. For the purposes of this Agreement, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets (as set forth under the Uniform Trade Secret Act as adopted by the state of California), know-how, business operations, plans, strategies, customers, finances, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing general description, Confidential Information of Company includes non-public information regarding features, functionality and performance of the Service, and Confidential Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”).
   3. Confidential Information Security: The Receiving Party agrees: (i) to safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own sensitive information and in no event less than a reasonable degree of care, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public other than by the Receiving Party’s or any of its representatives’ noncompliance with this Agreement, or (b) was rightfully in its possession or known by it without restriction on use or disclosure 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 Confidential Information of the Disclosing Party or (e) is required to be disclosed by Law and only then upon advance written notice to Disclosing Party so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section.
4. CUSTOMER DATA
   1. Ownership Rights: Customer shall own all right, title and interest in and to the Customer Data. 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 the Services or Software, (c) any data that is based on or derived from the Customer Data, but not including Customer Data, and provided to Customer as part of the Services, and (d) all intellectual property rights related to any of the foregoing.
   2. Data Collection and Use: Notwithstanding anything in this Agreement to the contrary, Company shall have the right to 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, Customer 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. Customer may request that Customer Data be excluded for such purposes by configuring the product appropriately through the administrative portal. No rights or licenses are granted except as expressly set forth herein.
   3. Protection of Customer Data: The terms of the DPA are hereby incorporated by reference and will apply to the extent any Customer Data includes Personal Data (defined below). The DPA and BAA set out how Company will process Personal Data on Customer’s behalf in connection with the Services provided to Customer under this Agreement. Company will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA.
   4. Security: During the Term of this Agreement, Company will, as set forth in the Artera Trust Center: (a) maintain an information security program that requires administrative, technical, and physical safeguards relating to its Services platform to protect Customer Data; (b) conduct an annual SOC 2 Type II audit and/or maintain ISO 27001 certification, or equivalent; (c) maintain technical and organizational measures at a level of security commercially appropriate for the Services; and (d) notify Customer within five (5) business days after becoming aware of any breach of Customer Data.
5. PAYMENT OF FEES
   1. Fees: Customer will pay Company the then applicable fees described in the Order Form for the Implementation Services (the “Implementation and Integration Fees”) and the Services (the “Services Fees”), in accordance with the terms herein (both fees referred to collectively as the “Fees”) within thirty (30) days of receiving said Order Form. Company reserves the right to unilaterally increase Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term (as defined below) of the Order Form, upon sixty (60) days’ prior written notice via overnight mail or electronic mail to Customer, should such Fee increase not exceed the percentage increase during the immediately preceding twelve-month period in the Consumer Price Index, All Urban Consumers, U.S. City Average, or All Items, as published and final by the Bureau of Labor Statistics, United States Department of Labor. Supplemental and/or additional features and/or packages may be made available over the Initial Term or Renewal Term for Customer’s existing text and messaging apps (e.g. future versions, forms, custom APIs, satisfaction surveys, etc.) that when elected could increase the Fees.
   2. Minimum Fees: Unless expressly stated otherwise in the Order Form, the Fees for the Services set forth in the Order Form are the minimum Fees owed during the applicable billing period.
   3. Invoices and Late Payments: Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by Law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
   4. Applicable Taxes: Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than U.S. taxes based on Company’s net income.
   5. Billing Disputes: If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (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 Company’s customer support department. All amounts payable to Company under this Agreement shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than Service Credits issued pursuant to Exhibit B or any deduction or withholding of tax as may be required by applicable Law).
6. TERM, RENEWAL, TERMINATION, AND SUSPENSION
   1. Term and Renewal: Two (2) Years (the “Initial Term”), commencing on the Effective Date (as defined below) shall automatically renew for additional periods of the same duration as the Initial Term (each a “Renewal Term” and collectively, together with the Initial Term, the “Term”), unless either party elects not to renew by providing notice at least thirty (30) days prior to the end of the then-current term. Notwithstanding the foregoing, in the event that an Order Form provides for a longer term than the Term would otherwise be, the Term of this Agreement shall be extended so that the Agreement shall continue to apply to any Order Form entered into under it for so long as such Order Form is in effect.
   2. Termination for Cause: In addition to any other express termination right set forth elsewhere in this Agreement: (a) Company may terminate this Agreement, effective upon written notice to Customer, if Customer (i) fails to pay any amount when due hereunder, and such failure continues more than five (5) days after Company’s delivery of written notice thereof or (ii) breaches any of its obligations under Section 2 or Section 3; (b) either party may terminate this Agreement in the event an applicable Law changes so that the Services are no longer in compliance with such Law which termination will be effective upon written notice to Customer or upon the effective date of the change in Law, whichever occurs first; (c) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach (i) is incapable of cure or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and (d) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
   3. Suspension: Company may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s, Authorized User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of Company; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 5.3 does not limit any of Company’s other rights or remedies, whether at law, in equity or under this Agreement.
   4. Refund: In the event this Agreement expires or is terminated for any reason other than Customer’s termination under Section 6.2(b)-(d) of this Agreement, Customer shall be responsible for payment of the Services through the end of the applicable Term and shall not receive a refund of any upfront Fees paid for such Term. In the event Customer terminates this Agreement under Section 6.2(b)-(d), Customer shall be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Company shall refund to Customer Fees paid in advance which are attributable to the period after the effective date of such termination. Annual or monthly fees shall be prorated up to and including the last day on which the Services are provided.
7. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
   1. Company Representations and Warranties: Company represents and warrants that it maintains a comprehensive written information security program that covers all aspects of Company’s information security practices, policies, and procedures. Company represents and warrants that it implements appropriate physical, organizational, and technical controls designed to maintain the confidentiality, integrity, and availability of all data Company creates, receives, maintains, or transmits. Company represents and warrants it protects against any reasonably anticipated threats or hazards to the security or integrity of data Company creates, receives, maintains, or transmits. Company warrants that it shall (a) deliver and perform the Services in a good and workmanlike manner consistent with applicable industry standards and the functional requirements and technical specifications set forth in the applicable Order Form; and (b) use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services.
   2. Customer Representations and Warranties: Customer warrants that Customer will use the Services only in compliance with this Agreement, Company’s Messaging and Engagement Policy terms of use (available at https://artera.io/messaging-and-engagement-policy/), and all applicable laws and regulations. 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 in violation of the foregoing. Customer acknowledges and agrees that Company may provide advice and recommendations as part of the Services, but that all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, the Customer.
   3. Disclaimers: 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 AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS. BOTH PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY THIRD-PARTY MATERIALS, WHICH ARE PROVIDED “AS IS.” Company shall not be responsible for any damages, losses, or liability related to any changes in applicable Law that results in the Services no longer being in compliance with such Law.
   4. Beta Services: Company may invite Customer to try, at no additional charge, Services that are not generally available to Customers (“Beta Services”). Any Beta Services will be designated as beta, pilot, limited release, developer preview, non-production, or by a description of similar import. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, are subject to change in Company’s sole discretion, and may be subject to additional terms. Customer shall immediately inform Company of any bugs or errors experienced, and otherwise provide its Feedback to, and cooperate with, Company on Beta Services as reasonably requested by Company. Beta Services are provided “as is” with no express or implied warranty, and Company disclaims all liability for Beta Services. Company may discontinue Beta Services at any time in Company’s sole discretion and may never make them generally available.
8. INDEMNITY
   1. Indemnification by Company: Company shall indemnify Customer, its affiliates, trustees, directors, employees, professional staff, and agents from liability arising out of or relating to any claim, suit, action, or proceeding (each, an “Action”) by a third party (other than an affiliate of Customer) alleging that Customer’s use of the Services as contemplated hereunder infringes such third party’s United States patent, copyright, and/or trademark intellectual property rights and/or misappropriates such third party’s trade secret (as set forth under the Uniform Trade Secret Act as adopted by the state of California) (an “IP Claim”), provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
   2. Indemnification by Customer: Customer shall indemnify Company and its officers, directors, employees, agents, successors, and assigns (each, a “Company Indemnitee”) from liability arising out of or relating to any claim, suit, action, or proceeding (each, an “Action”) by a third party (other than an affiliate of Company) alleging that Company’s use and/or processing of (a) the Customer Data by or on behalf of Company in accordance with this Agreement; or (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Company’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Company infringes such third party’s United States patent, copyright, and/or trademark intellectual property rights and/or misappropriates such third party’s trade secret (as set forth under the Uniform Trade Secret Act as adopted by the state of California) (a “Customer IP Claim”).
   3. Indemnification Procedure: Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 8.1 or Section 8.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
   4. Actions Permitted: Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
   5. THIS SECTION 8 SETS FORTH THE PARTIES SOLE REMEDIES AND LIABILITIES AND OBLIGATIONS FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND SOFTWARE) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
9. LIMITATION OF LIABILITY
   1. EXCEPT WITH RESPECT TO COMPANY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL COMPANY, NOR COMPANY’S SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, OR EMPLOYEES BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER THEORY FOR: (A) ANY ERROR OR INTERRUPTION OF USE, OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, OR FOR LOSS OF BUSINESS, REVENUE, OR PROFIT; (B) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; (C) ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) ANY AMOUNTS THAT, IN THE AGGREGATE, EXCEED THE FEES RECEIVED BY OR PAYABLE TO COMPANY IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY (“GENERAL LIABILITY CAP”); IN EACH CASE, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
   2. EXCEPT WITH RESPECT TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL CUSTOMER, NOR CUSTOMER’S SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, OR EMPLOYEES BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER THEORY FOR: (A) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (B) ANY AMOUNTS THAT, IN THE AGGREGATE, EXCEED THE FEES RECEIVED BY OR PAYABLE TO COMPANY IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY (“GENERAL LIABILITY CAP”); IN EACH CASE, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
   3. IN THE CASE OF IP CLAIMS AND CONFIDENTIAL INFORMATION CLAIMS ARISING OUT A MATERIAL BREACH OF SECTIONS 3 AND 4 OF THIS AGREEMENT, EACH PARTY AND THEIR AFFILIATES TOTAL LIABILITY TO THE OTHER PARTY 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”).
10. MISCELLANEOUS
    1. Assignment: Neither Party may assign, sublicence, or transfer this Agreement, in whole or in part, without the prior written consent of the other Party, except for the following: The parties may assign this Agreement to an affiliated entity or in connection with a merger, acquisition, or sale of all or substantially all of its assets or business provided that the assignee agrees in writing to be bound by the terms of this Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
    2. Dispute Resolution: Any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by arbitration in Santa Barbara, 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.
    3. Compliance with Laws: Both Parties agree to comply with all applicable laws, regulations, and industry standards in connection with their performance under this Agreement. Each Party shall be responsible for ensuring that its actions, including but not limited to the use of the service, are in compliance with all applicable laws, including data protection, privacy, and United States intellectual property laws.
    4. Entire Agreement: This Agreement together with all referenced exhibits herein, Order Form(s), the DPA (if applicable), and the BAA (if applicable) 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. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
    5. Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond the Party’s reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
    6. Governing Law: This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. All suits arising from or concerning this Agreement may only be filed in a state court in the County of Santa Barbara, California or the U.S. District Court for the Central District of California. Customer hereby irrevocably consents to the jurisdiction of such court or courts.
    7. Notices: Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. 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. A signed copy of this Agreement delivered by facsimile, e-mail, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. The address for all notices to Artera is: Well Health, Inc. d/b/a Artera, 3 E De L Guerra Street, Santa Barbara, CA 93101 with a copy to [email protected] and [email protected] by electronic mail.
    8. Relationship of the Parties: No agency, partnership, joint venture, or employment is created as a result of this Agreement. Neither Party has any authority of any kind to bind the other Party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees.
    9. Survival: 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. All sections of this Agreement that must survive termination in order to have their customary effect, including terms related to confidentiality, indemnification, and limitation of damages and liability, will survive termination or expiration of this Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
11. DEFINITIONSThe parties agree that the following terms, when used in this Agreement, shall have the following meanings.
    • “Artera Standard Definitions”: The definitions listed on the Order Form (Exhibit A).
    • “Artera Trust Center”: Clears the pathways to accessing critical security information for the customer, while also increasing control and oversight for the security team and can be found at https://artera.io/trust-center/.
    • “Affiliates”: Any entity that directly or indirectly controls, is controlled by, or is under common control with a Party. ‘Control’ means ownership of more than fifty percent (50%) of the voting power or ownership interest of an entity.
    • “Business Associate Agreement (BAA)”: A BAA governing the parties’ respective obligations with respect to any HIPAA Data processed by Customer in the Services in accordance with the terms of this Agreement and which is incorporated by reference herein.
    • “Data Processing Addendum (DPA)”: A DPA governing the processing of personal data by the Company as a data processor on behalf of the Customer, who acts as the data controller and which is incorporated by reference herein.
    • “Feedback”: Any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Artera Offerings relating to any Artera Offerings.
    • “Implementation & Integration Fees”: The fees associated with the implementation and integration services necessary to successfully deploy and integrate the Software.
    • “Order Form (OF)”: A document that outlines the specific details and Fees of the Services and Implementation Services being purchased by the Customer. It is attached hereto as Exhibit A and is incorporated by reference herein.
    • “Personal Data”: Any information relating to an identified or identifiable individual where (i) such information is contained within Customer Data and (ii) is protected as personal data, personal information, or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
    • “Services”: The Services, Implementation Services, documentation, Technical Support, Software, deliverables, and any and all related underlying technology and documentation in any of the aforementioned; and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated therein support and other ancillary services (including, without limitation, services to prevent or address service or technical problems) provided by Artera.
    • “Services Fees”: The fees associated with the licensing and use of the Company’s Software by the Customer and the fees for the Services provided to the Customer upon completed implementation and deployment of the Software.
    • “Statement of Work (SOW)”: A document that outlines the specific details of an order from the Customer and is incorporated by reference herein.