This StayWell Terms and Conditions Agreement (“the Agreement”) is entered into by and between The StayWell Company, LLC (“Staywell”) and the entity that is the signatory to the relevant Order Form (“Client”).  This Agreement shall govern all Order Forms executed between Staywell and Client which specifically references this Agreement.  The “Effective Date” of this Agreement shall be the date of the first Order Form executed between Staywell and Client that incorporates the terms of this Agreement.  

This Agreement contains the terms and conditions upon which StayWell provides a license to Client to access and use (i) certain health, nutrition and/or wellness content , including all documentation, text, audio, video, graphics, animation, drawings, icons, images, pictures and charts contained therein (“Content”) to be made available by StayWell at one or more specific URLs, mobile applications, FTP sites, or via API call, or as otherwise defined on the Order Form, provided by StayWell to Client (each a “Site”) and (ii) the StayWell products and technologies required to deliver and display such Content (“Products”). 

  1. License Grant.  During the term of the applicable Order Form and subject to the terms and conditions thereof, as well as the terms and conditions of any  exhibits thereto, and the terms and conditions herein, StayWell grants to Client and/or its Affiliates a limited, non-exclusive, non-transferable license, without the right to sublicense, to: (a) permit the authorized number of Users (as that term is defined below) to access, use and display the Content through the applicable Products selected on the Order Form in accordance with the applicable Terms of Use outlined on the Order Form; (b) permit its patients, members, employees, subcontractors and/or authorized clinical system users to access and use the Content in connection with the normal non-commercial activities associated with their use of the selected Products; (c) when permitted in the applicable Order Form, use and display the Content on social media websites and through e-mail and blogs with the intent to drive the viewer to the Client’ Authorized Site as set forth in the applicable Order Form.   “Affiliate” shall mean a corporation, partnership, or other entity that controls, is controlled by or is under common control with, Client and has been authorized by Client to use the Content or Products in accordance with this Section 1.  For purposes of this Agreement, “Users” may include personnel providing services to Client, including but not limited to employees, consultants, and agents of Client; provided that (i) any User that is not an employee of Client must be bound by written terms and conditions with Client that serve to protect StayWell in a manner no less protective than the terms and conditions of this Agreement, and (ii) Client shall be responsible for all acts and/or omissions of Users.

  2. Additional License RestrictionsThe Content may only be used to educate Users about medical conditions, diagnoses, treatments and self-care.  Client acknowledges that the license granted herein is solely for usage through the selected Content and Products and it does not permit Client to offer the Content in any way separate from the selected Products or Content identified in the applicable Order Form.  When permitted under an Order Form, such display shall be subject to inclusion of StayWell disclaimers and copyright notices.  Unless expressly permitted in the applicable Order Form, Content may not be displayed on public facing internet websites, or integrated into mobile applications for use on mobile phones or devices. Except as otherwise expressly permitted under this Agreement, Client agrees not to: (a) disassemble, reverse compile, reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Content or Site (or any portion thereof); (b) distribute, lend, rent, sell, transfer or grant sublicenses to, or otherwise make available the Content or Site (or any portion thereof) to third parties, including, but not limited to, making such Content available (i) through resellers, OEMs, other distributors, or (ii) as an application service provider, service bureau, or rental source; (c) embed or incorporate in any manner the Content (or any element thereof) into other applications of Client or third parties; (d) create modifications to or derivative works of the Content or Site; (e) knowingly allow any User or individual or entity under the control of Client to access Content or a Site without a valid license from StayWell for such access; (f) use or transmit the Content in violation of any applicable law, rule or regulation, including any export/import laws, (g) in any way access, use, or copy any portion of the Content or Site code (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Content or Site or (h) remove, obscure or alter any copyright notices or any name, logo, tagline or other designation of StayWell displayed on any portion of the Site or Content (“StayWell Marks”). Neither party shall use the other party’s name or any mark belonging to the other party other than in connection with the Content, Products and Services provided by StayWell hereunder without the prior written consent of the other party. Client shall not permit any third party to perform any of the foregoing actions and shall be responsible for all damages and liabilities incurred as a result of such actions.  The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101, and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, the Content is provided to U.S. Government End Users (i) only as a commercial end item and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
  1. Modifications. Except as provided herein, Client shall not modify the Content or Product(s).  If expressly set forth in an Order Form, modifications to Content may be allowed under limited circumstances and to certain portions of the Content.  To the extent modifications are permitted, StayWell grants Client the limited right to edit those portions of the Content which may be modified to meet Client’s specific needs and preferences, including editing, parsing, deleting and reorganizing portions of the Content (each, and together “Modification”).  Client shall retain all rights, title and interest in and to Modifications made by Client that do not incorporate or contain any confidential or propriety information of StayWell or any Content.  Notwithstanding the foregoing, nothing in this Agreement shall be construed to grant Client a right, title or interest in or to any derivative work that includes any portion of the Content together with the modifications made by Client or any Content that Client has requested be translated into another language.  As it relates to any Modification, Client represents and warrants that it has obtained the proper authorization from any applicable third party rights owner to make the Modification and all Modifications to the Content will be performed by or under the supervision of trained medical professionals.  Client expressly assumes any and all liability related to Client’s Modifications. To the extent that disclaimers are required to be displayed in connection with the display of Content, Client agrees to prominently display such disclaimers on Client’s Authorized Sites in close visual proximity to any display of Content.  Client acknowledges that StayWell will not be obligated to provide any updates to Content that has been modified by Client and that to the extent such content was previously accredited by URAC, it may no longer be so accredited as a result of Client’s modifications.  
  1. Ownership. Except as otherwise provided in an Order Form, Client agrees that StayWell and/or its licensors own all right, title, and interest in and to the Content and the Products, including but not limited to all information, content, software, technology, specifications, text, graphics, databases, code and information available through the Content and Products and all copyrights and all other Intellectual Property Rights in and to the foregoing, including all derivative works, enhancements, customizations, modifications or upgrades thereto.  Except as expressly granted herein, Client acquires no right, title, or license in the Content or the content or data incorporated therein. For purposes of clarification, this Agreement does not grant StayWell any ownership interest in Client’s products or services that incorporate the Content, except for those rights in the Content contained therein. Subject to the terms and conditions of this Agreement, StayWell hereby grants to Client a limited, revocable, non-exclusive, non-transferable license, without sublicense rights, to use the StayWell Marks, solely in connection with the marketing, promotion and provision of the Content to Users.  Client will not directly or indirectly obtain or attempt to obtain at any time, any right, title or interest by registration or otherwise in or to the StayWell Marks.  Client acknowledges that the goodwill associated with the StayWell Marks belongs exclusively to StayWell and, upon request, Client will modify or cease its use of any StayWell Marks. 
  1. FeesThe amount of license fees (the “Annual License Fees”) payable to StayWell is set forth in the applicable Order Form.  All Annual License Fees payable will be due within thirty (30) days of invoice date or as otherwise set forth in the Order Form, or such other date as may be agreed upon by the parties. To the extent StayWell is asked to perform any custom work, such work will be detailed in writing in a separate Order Form.  The Annual License Fees set forth in the Order Form are exclusive of any applicable taxes and Client shall be responsible for any applicable sales, use or other like taxes, excluding, however, taxes based upon StayWell’s net income.  
  1. Termination. The term of this Agreement shall commence on the Effective Date and shall continue until written notice of termination is provided by either party following the expiration or termination of all Order Forms entered into under this Agreement.  Notwithstanding anything stated in this Agreement to the contrary, either party may terminate this Agreement for the material breach of any provision of this Agreement by the other party, if such material breach remains uncured for thirty (30) days after receipt of written notice of such breach from the non-breaching party. Such termination right shall be in addition to any other rights and remedies that may be available to the non-breaching party.  Upon the expiration or termination of this Agreement for any reason: (i) any provisions of this Agreement which must survive in order to give effect to their meanings shall survive such termination or expiration; (ii) all fees owed by Client to Staywell shall become immediately due; and (iii) each party shall promptly return or destroy (as instructed by the other party) all Confidential Information (as defined below) of such other party.
  1. DisclaimerThe Content is not intended to replace professional medical advice and is not intended to be relied upon by any person or entity for purposes of medical diagnosis or treatment.  The information may become unreliable for many reasons including subsequent research, findings and test results.  Although StayWell makes reasonable efforts to ensure the accuracy and reliability of the Content, Client acknowledges that StayWell, its affiliates, and its and its affiliates’ licensors, and its, its affiliates’, and those licensors’ respective officers, directors, employees, shareholders, and agents (collectively the “StayWell Protected Parties”) will not be held liable for any damages suffered or incurred by Client or any third person arising out of: (a) any faults, interruptions, or delays in the Content or its delivery; (b) any use of or reliance on the Content by any person; or (c) any inaccuracies, errors, or omissions in the Content, however such faults, interruptions, delays, inaccuracies, errors or omissions arise unless due to the gross negligence or willful misconduct of StayWell.  The StayWell Protected Parties do not guarantee the accuracy, timeliness, or completeness of the information obtained from the Content, or warrant any results from using the Product or the Content.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE STAYWELL PROTECTED PARTIES DO NOT MAKE, AND CLIENT DOES NOT RECEIVE, ANY REPRESENTATION OR WARRANTY (EXPRESS OR IMPLIED) REGARDING THE STAYWELL CONTENT OR SERVICES.  THE WARRANTIES STATED IN THIS ORDER FORM ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  THE STAYWELL PROTECTED PARTIES DISCLAIM ALL WARRANTIES (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE) TO THE EXTENT ALLOWED BY APPLICABLE LAW.
  1. Hosting Agreement. StayWell will be responsible for the set-up, configuration and hosting of the applicable Content within a Site (the “Hosting Services”), including obtaining and maintaining all physical equipment and/or software necessary to perform the Hosting Service, unless otherwise set forth in an Order Form.  Client acknowledges and agrees that, subject to the licenses granted in Section 1 above and any other terms and conditions applicable to a Site, it has no right to and specifically disclaims any possessory, leasehold or other real property interest in the physical equipment and software utilized to set-up and maintain the Content. StayWell may from time to time, in its sole discretion, manage and install certain updated Content within a Site (“Updates”). Client and Users will be responsible for all necessary computer hardware, software, modems, mobile devices, connections to the Internet and other items that are needed for accessing the Content via the Site, and all costs associated with such access. StayWell shall use commercially reasonable efforts to provide Hosting Service 365 days per year, subject to downtime for repairs, upgrades or routine maintenance.

  2. Confidentiality.   Each party acknowledges that the other party may disclose its Confidential Information to the other in the performance of this Agreement.  Accordingly, each party shall (i) keep the Confidential Information disclosed by the other party confidential, (ii) use Confidential Information only for purposes of fulfilling its obligations hereunder, and (iii) disclose such Confidential Information only to the receiving party’s employees who have a need to know and only for the purposes of fulfilling this Agreement.  As used herein, “Confidential Information” means information in the possession or under the control of a party of a proprietary nature relating to the technical, marketing, product and/or business affairs or proprietary and trade secret information of that party in oral, graphic, written, electronic or machine readable form.  “Confidential Information” shall not include information: (a) the receiving party possesses on a non-confidential basis prior to acquiring it from the other; (b) that becomes available to the public through no violation by the receiving party of this paragraph; (c) that is given to the receiving party on a non-confidential basis by a third party not under a confidentiality obligation to the disclosing party; or (d) that is developed by the receiving party independently of and without reliance on confidential or proprietary information provided by the disclosing party.   Should a receiving party be requested to disclose Confidential Information of the disclosing party by a lawful judicial or governmental order or other legal compulsion, such receiving party shall immediately notify the disclosing party to permit the disclosing party to defend against any such order of disclosure, and the receiving party shall assist in such defense, at the disclosing party’s expense, to the extent permitted by law.  If the receiving party is thereafter required to disclose Confidential Information of the disclosing party, the parties shall agree to a mutually satisfactory means to disclose such Confidential Information as necessary to comply with the applicable order.
  1. Indemnity.  Client shall, at its sole cost and expense, indemnify and hold Staywell, its affiliates, and its and their respective officers, directors, employees, agents, successors and assigns harmless from and against any and all claims, losses, damages, judgments, costs and expenses (including attorneys’ fees and expenses), arising out of a third party claim related to: (i) any content or materials furnished by Client for use in connection with any license or services provided under any Order; (ii) the acts or omissions of Client; or (iii) a breach by Client of any of its representations and warranties set forth in this Agreement. 

    Staywell shall, at its sole cost and expense, indemnify and hold Client, its affiliates, and its and their respective officers, directors, employees, agents, successors and assigns harmless from and against any and all third party claims, losses, damages, judgments, costs and expenses (including attorneys’ fees and expenses), arising out of or related to a third party claim that any Content or Staywell’s trademarks infringe any third party's existing U.S. patent, copyright, or trademark.  If such a claim is made or appears possible, or if in Staywell’s opinion, such a claim is likely to occur, Staywell may, at its sole option and expense, either (i) procure for Client the right to continue to use the materials in question; or (ii) modify or replace the infringing materials so that they become non-infringing as long as the functionality is not materially and adversely affected.  If neither of the foregoing options is reasonably available then Staywell may terminate this Agreement and all applicable Order Forms.

    Staywell will have no liability or obligation under this Section 10 for: (i) the combination or use of any Content provided under this Agreement or any Order Form with content, technology or other materials not supplied by Staywell; (ii) alteration, modification, misuse, or unauthorized use of any Content provided under this Agreement; or (iii) Client’s continued use of anything other than the then current release of the Content.

    With respect to a party's indemnification obligations hereunder, the indemnified party agrees to: (i) give the indemnifying party prompt written notice of any claim, action, suit or proceeding for which it is seeking indemnity; (ii) grant control of the defense and settlement of the action to the indemnifying party; and (iii) reasonably cooperate with the indemnifying party with respect to the defense of the action.  The indemnified party may participate, at its own cost, in the defense and settlement of such action through counsel of its choice.  
  1. Limitations of Liability.  EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, LOSS OF USE OF EQUIPMENT OR LOST CONTRACTS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR COVER DAMAGES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, HOWEVER CAUSED, EVEN IF SUCH PARTY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT WITH RESPECT TO (I) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT OR (II) DAMAGES RESULTING FROM A BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, THE ENTIRE LIABILITY OF A PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT, OR ANY MATTER RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY) SHALL BE LIMITED TO DAMAGES NOT TO EXCEED THE TOTAL AMOUNTS PAYABLE BY CLIENT TO STAYWELL UNDER THE APPLICABLE ORDER FORM.

  2. General. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.  Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war, acts or threats of terrorism and governmental requirements.  The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.  This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals.  The terms of this Agreement shall be binding on the parties, and all successors to the foregoing who take their rights hereunder.  Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise.  StayWell may subcontract any of its rights or obligations under this Agreement or any Order Form, provided that StayWell shall remain directly responsible to Client for the performance of such services.  Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void.  All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed and interpreted for all intents and purposes by the laws of the State of Delaware, without giving effect to any conflict of laws principles therein.  The parties hereby agree that the courts of State of Delaware shall have sole and exclusive jurisdiction over any proceedings initiated by either of the parties, and the parties hereby irrevocably waive any objections to the personal jurisdiction and venue of such courts, including any objections based on forum non conveniens. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.  This Agreement and the Order Forms constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications.  The terms on any purchase order or similar document submitted by Client to StayWell will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the applicable Order Form and are deemed delivered when received.  To the extent there is a conflict between the express terms of this Agreement and an Order Form, the terms of this Agreement shall control unless the Order Form expressly states otherwise.

Last updated on 09/09/2020