1. The Service.
1.1. Provision of the Service. BetterMe shall make the Service purchased as detailed in the applicable invoice available to Customer and its End Users pursuant to this Agreement during the applicable Subscription Term. The Service includes the features and functionality applicable to the version of the Service ordered by the Customer. BetterMe may update the content, functionality, and user interface of the Service from time to time at its sole discretion. Each End User must acknowledge receipt of the Privacy Policy and accept the applicable Terms prior to using the Service and must remain in compliance with the applicable Terms while using the Service.
1.2. Access Rights. The Customer has a non-exclusive, non-sublicenseable, non-transferable (except as specifically permitted in this Agreement) right to access and use the Service pursuant to this Agreement during the applicable Subscription Term, solely for Customer’s internal corporate wellness purposes subject to the limitations set forth in the applicable invoice.
1.3. Usage Restrictions. The Customer shall not (a) make the Service available to, or use any Service for the benefit of, anyone other than Customer and its Affiliates; (b) rent, sublicense, re-sell, assign, transfer, distribute, time share, or similarly exploit the Service; (c) reverse engineer, copy, modify, adapt, hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (d) access the Service or BetterMe’s Confidential Information to build a competitive product or service; (e) alter or remove, or permit any third party to alter or remove, any proprietary trademark or copyright markings incorporated in, marked on, or affixed to the Service; (f) allow End User Subscriptions to be shared or used by more than one individual End User; or (g) access or use the Service: (i) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (ii) in violation of applicable laws; (iii) to send or store material knowingly or intentionally containing software viruses, worms, Trojan horses or other harmful computer code, files, or scripts; or (iv) in a manner that interferes with or disrupts the integrity or performance of the Service (or the data contained therein).
Notwithstanding subsection (f), the Customer may request to reassign an End User Subscription to a new individual End User, provided that the original End User’s account has been permanently deactivated and is no longer in use. Such reassignment is permitted solely on a one-to-one basis and must not be used to circumvent Subscription limitations. Reassignment is subject to BetterMe’s prior written approval, which shall not be unreasonably withheld. BetterMe also reserves the right to monitor and restrict excessive reassignment activity.
1.4. Administration of Customer’s Account. The Customer acknowledges that it retains administrative control over to whom it grants access to HR Admin Data hosted in the Service. The Customer is responsible for maintaining the security of HR Admin Data.
1.5. Compliance. The Customer is responsible for use of the Service by its End Users and for their compliance with this Agreement. Customer is solely responsible for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data. Customer shall ensure that it is entitled to transfer the relevant Customer Data to BetterMe so that BetterMe and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf. Customer shall promptly notify BetterMe if it becomes aware of any unauthorized use of or access to Customer’s account or the Service.
1.6. Suspension. BetterMe may request that Customer suspend the account of any End User who (a) violates this Agreement or BetterMe’s applicable Terms of Service, or (b) is using the Service in a manner that BetterMe reasonably believes may cause a security risk, a disruption to others’ use of the Service, or liability for BetterMe. If the Customer fails to promptly suspend or terminate such End User’s account, BetterMe reserves the right to do so.
2. Warranties.
2.1. By BetterMe. BetterMe warrants that during the applicable Subscription Term, BetterMe shall not materially decrease the functionality of the Service.
2.2. By Customer. Customer represents and warrants that (a) Customer has full power and authority to enter into this Agreement and to contract with BetterMe as contemplated by this Agreement and that nothing contained in this Agreement or in the performance of this Agreement will place Customer in breach of any other material contract or obligation; (b) Customer has complied with applicable law in connection with the Customer Data and has obtained all rights and permissions necessary to use the Customer Data as contemplated by this Agreement, and (c) that Customer will not resell, rent or lease the Services or Subscription.
2.3. Additional information for Australian Customers: Our Service comes with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service, Customers who are Australian residents are entitled to: (a) cancel any Service ordered under the applicable invoice; and (b) receive a refund for the unused portion of the Subscription Term, or compensation for its reduced value. If a failure with the Service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done Australian Customers are entitled to cancel any Service ordered under the applicable invoice and obtain a refund of any unused portion. Australian Customers are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Service.
2.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS SECTION, TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND BETTERME AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT BETTERME DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. BETTERME IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS CONTROL, INCLUDING PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, AND THIRD PARTY HOSTING SERVICE PROVIDERS.
2.5. BETTERME DOES NOT OFFER OR PROVIDE ANY KIND OF MEDICAL ADVICE, HEALTH INSURANCE OR OTHER HEALTHCARE SERVICE, INCLUDING WITHOUT LIMITATION, ANY COUNSELING, TESTING, EVALUATION, PRESCRIPTION, PROCEDURE OR THERAPY RELATED TO EXERCISE, NUTRITION, WEIGHT LOSS OR WELLNESS OR RELATED TO THE AVOIDANCE, PREVENTION, DIAGNOSIS OR TREATMENT OF ANY INJURY, ILLNESS, DISEASE OR CONDITION (COLLECTIVELY, "HEALTHCARE SERVICES").
2.6. THE SERVICE MAY NOT BE APPROPRIATE FOR ALL PERSONS AND IS NOT A SUBSTITUTE FOR PROFESSIONAL HEALTHCARE SERVICES. THE SERVICE IS INTENDED ONLY AS A TOOL WHICH MAY BE USEFUL IN ACHIEVING OVERALL HEALTH AND FITNESS GOALS.
3. Fees and Payment.
3.1. Subscription Fees. Customer’s Subscription fees are set forth in the applicable invoice and are based on the number of Subscriptions, the functionality of the Service purchased, and other terms as may be agreed between the parties. The Customer shall pay all fees when due and is responsible for providing complete and accurate billing information to BetterMe. Payment obligations are non-cancelable and fees paid are non-refundable unless otherwise provided herein.
The number of Subscriptions purchased under an applicable invoice cannot be decreased during the applicable Subscription Term. In the event the Customer elects to purchase additional End User Subscriptions during the Subscription Term, such additional Subscriptions shall be invoiced separately and may be subject to different pricing conditions, as specified in the respective invoice. The Subscription Term for such additional Subscriptions may differ from the original Subscription Term and shall be determined individually for each such Subscription.
BetterMe reserves the right to suspend Customer’s account, in addition to all of its other available rights and remedies, in the event that Customer’s account becomes overdue. Suspension shall not relieve Customer’s obligation to pay amounts due.
3.2. Calculation. Subscription fees are based on annual or monthly periods (or other period that may be mutually agreed between the parties) that begin on the Subscription start date. Customer shall purchase a Subscription to the Service for each End User, and the initial number of Subscriptions is reflected in the applicable invoice. BetterMe reserves the right to calculate the total number of End Users periodically and, if the number of End Users exceeds Customer’s current Subscription, then BetterMe reserves the right to invoice Customer for additional End Users or to deny any additional End Users access to the Services, at BetterMe’s sole discretion. Once an End User has signed up for Services using Customer domain, his Subscription is activated and will be counted towards the total number of End User Subscriptions purchased by Customer. Once activated, the Subscription may not be shared or simultaneously used by more than one End User, but may be reassigned to a new End User on a one-to-one basis in accordance with Section 1.3..
3.3. Taxes. Except for those taxes based on BetterMe’s net income, the Customer shall be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for the Service be subject to withholding tax by any government, Customer shall reimburse BetterMe for such withholding tax.
3.4. Future Features and Functionality. The Customer agrees that any purchases under this Agreement are not contingent on the delivery of any future feature or functionality or dependent on any oral or written public or private comments made by BetterMe regarding future features or functionality. BetterMe may release Improvements and other features and functionality in its discretion. Some features and functionality may be available only with certain versions of the Service.
4. Term and Termination.
4.1. This Agreement commences on the Effective Date and shall remain in effect until all Subscriptions to the Service granted in accordance with this Agreement have expired or been terminated.
Either party may terminate this Agreement if the other party: (a) is in material breach of this Agreement and fails to cure such breach within twenty (20) days following receipt of written notice from the non-breaching party, except that termination will take effect immediately upon notice in the event of a breach of Section 1. 3 (“Usage Restrictions”); or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within sixty (60) days.
Upon expiration or termination of this Agreement for any reason, all Subscriptions and any other rights granted to Customer under this Agreement shall immediately terminate, and BetterMe may immediately deactivate Customer’s account(s) associated with the Agreement. In no event will any termination relieve the Customer of the obligation to pay any fees accrued or payable to BetterMe.
4.2. This Agreement and any Subscription shall not auto-renew unless expressly stated in the applicable Invoice or otherwise mutually agreed in writing by the Parties. BetterMe may, but shall not be obligated to, notify the Customer of any expiration date in advance, and it is the Customer’s responsibility to monitor the Subscription Term and renew if desired.
If the Parties intend to renew the Subscription, they shall initiate good faith negotiations regarding the applicable commercial terms, including pricing and scope, no later than ten (10) days prior to the expiration of the then-current Subscription Term, unless otherwise agreed in writing.
4.3. The following sections shall survive expiration or termination of this Agreement: Sections 1. 3 (“Usage Restrictions”), 2 (“Warranties”), 3. 1 (“Subscription Fees”), 3. 4 (“Taxes”), 4 (“Term and Termination”), 5 (“Confidentiality”), 6 (“Intellectual Property Rights”), 7 (“Indemnification”), 8 (“Liability”), 9 (“Miscellaneous”), and 10 (“Definitions”).
5. Confidentiality.
5.1. Definitions. “Confidential Information” will include (i) commercial business or technical information of either Party, including but not limited to information relating to either Party’s product plans, security information, customers, designs, costs, product prices, and names, finances, marketing plans, business opportunities, research, development, or know-how; (ii) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (iii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary.
5.2. Obligations. Recipient agrees to use the Confidential Information of the other Party only to exercise rights and fulfill its obligations under this Agreement. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section.
5.3. Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court of law or other regulatory body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
5.4. Equitable Relief. The Recipient acknowledges that the remedy at law for breach of this Section 5 may be inadequate and that, in addition to any other remedy the Discloser may have, it shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of this Section 5 by the Recipient or any of its Representatives and to enforce the terms and provisions of this Section 5 in addition to any other remedy to which the Discloser is entitled at law or in equity.
6. Intellectual Property Rights.
6.1. By Customer. Customer owns all rights, titles, and interests in and to Customer Confidential Information and Customer Data, including all related Intellectual Property Rights. Customer grants BetterMe and its authorized third-party service providers a worldwide, non-exclusive license to host, copy, access, process, transmit, and display Customer Data: (a) to maintain, provide, and improve the Service and perform under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) to investigate in good faith an allegation that an End User is in violation of this Agreement or the BetterMe User Terms of Service; or (d) at Customer’s direction or request or as permitted in writing by Customer.
6.2. By BetterMe. BetterMe owns and will continue to own all rights, titles, and interests, including all related Intellectual Property Rights, in and to its Confidential Information and the Service, including any enhancements, customizations, or modifications thereto.
6.3. Marks. Customer may use BetterMe Marks solely in connection with promoting the Service to End Users, provided that Customer shall not use BetterMe Marks in any manner that is defamatory, misleading, libelous, obscene, or otherwise potentially damaging to the reputation or goodwill of BetterMe. BetterMe may use Customer Marks, and Customer hereby does provide BetterMe with the necessary rights and licenses to use Customer’s name and logo on BetterMe’s website, blog, or in marketing materials, including case studies and press references, to identify Customer as a customer of BetterMe. Each Party recognizes and acknowledges exclusive ownership of its respective Marks and the goodwill associated therewith.
6.4. Suggestions. BetterMe welcomes feedback from its customers about the Service. If Customer (including any End User) provides BetterMe with any feedback or suggestions regarding the Service or Professional Services (the “Feedback”), BetterMe may use, disclose, reproduce, sublicense, or otherwise distribute and exploit the Feedback without restriction or any obligation to Customer or any End User. In particular, BetterMe shall not be required to identify the Customer or any End User as the source of such Feedback.
7. Indemnification.
7.1. By Customer. Customer shall defend BetterMe, its Affiliates, and their employees, officers, and directors (together, the “BetterMe Indemnified Parties”) from and against third-party claims, actions, and demands arising from (i) Customer’s breach of this Agreement or any breach of this Agreement by any End User; (ii) allegations that Customer Data or HR Admin Data, unauthorized use of the Service by Customer or its End Users, or BetterMe’s processing of data pursuant to Customer’s instructions infringes a third party’s Intellectual Property Right or privacy right (each, a “Claim Against BetterMe”), and Customer shall indemnify and hold the BetterMe Indemnified Parties harmless against any damages, reasonable attorneys’ fees, and costs finally awarded against BetterMe Indemnified Parties as a result of, or for any amounts paid by the BetterMe Indemnified Parties under a Customer-approved settlement of, a Claim Against BetterMe.
7.2. By BetterMe. BetterMe shall defend Customer, its Affiliates, and their employees, officers, and directors (together the “Customer Indemnified Parties”) from and against third party claims, actions, and demands alleging that Customer’s authorized use of the Service infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of that third party (each, a “Claim Against Customer”), and BetterMe shall indemnify and hold the Customer Indemnified Parties harmless against any damages, reasonable attorneys’ fees, and costs finally awarded against Customer Indemnified Parties as a result of, or for any amounts paid by the Customer Indemnified Parties under an BetterMe-approved settlement of, a Claim Against Customer; provided, however, in no event will BetterMe have any obligations or liability under this Section 7. 2 to the extent a Claim Against Customer arises from: (a) Customer or any End User’s use of the Service other than as permitted under this Agreement; or (b) use of the Service in a modified form or in combination with products, services, content, or data not furnished to Customer by BetterMe.
7.3. Potential Infringement. If the Service becomes, or in BetterMe’s reasonable judgment is likely to become, the subject of a claim of infringement, then BetterMe may in its sole discretion: (a) obtain the right, at BetterMe’s expense, for Customer to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Service so that it is no longer infringing. If BetterMe, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then BetterMe may suspend or terminate Customer’s use of the Service, in which case BetterMe’s sole liability (in addition to its obligations under Section 7. 2) shall be to provide Customer with a prorated refund of any prepaid, unused fees applicable to the remaining portion of the Subscription Term. Sections 7. 2 and 7. 3 state BetterMe’s sole liability and the Customer Indemnified Parties’ exclusive remedy for infringement claims.
7.4. Indemnification Process. The party seeking indemnification shall provide prompt notice to the indemnifying party concerning the existence of an indemnifiable claim and shall promptly provide the indemnifying party with all information and assistance reasonably requested and otherwise cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations under this Agreement only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party shall have full control and authority over the defense of any claim; provided, however, that any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent, not to be unreasonably withheld or delayed.
8. Liability.
8.1. Limitation of Liability. EXCEPT FOR A PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 (“INDEMNIFICATION”), IN NO EVENT SHALL EITHER PARTY’S OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
8.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR LOSS OF USE, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.3. The provisions of this Section 8 allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement.
9. Miscellaneous.
9.1. Governing Law; Venue. This Agreement shall be governed in accordance with the laws of England and Wales (excluding its body of law governing conflicts of law). Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution® in accordance with its International Dispute Resolution Procedures, as modified by the ICDR® Online Protocol for Manufacturer/Supplier Disputes then in effect (the International Dispute Resolution Procedures and the ICDR Online Protocol for Manufacturer/Supplier Disputes are located at www.icdr.org).
9.2. Notice. BetterMe may give general notices related to the Service that are applicable to all customers by email, text, in-app notifications, or by posting them on the BetterMe websites, applications or through the Service and such electronic notices shall be deemed to satisfy any legal requirement that such notices be made in writing. Any notice required or permitted to be given under this Agreement will be effective if it is in writing and sent by (a) postal mail to the address listed in the most recent invoice, “Attn: Legal”, or (b) by electronic mail to legal@betterme.world in the case of BetterMe, and the email address listed on the invoice in the case of Customer. Either Party may change its address for receipt of notice by written notice to the other Party in accordance with this Section. Notices are deemed given two (2) business days following the date of sending.
9.3. Compliance with Data Protection Laws.
- With regard to any personal data processed by either Party in connection with this Agreement, the Parties will respectively each be a controller in respect of such processing. Each Party agrees to comply with the requirements of the Data Protection Laws applicable to controllers in respect of the provision of the Services and otherwise in connection with this Agreement. For the avoidance of doubt, BetterMe and the Customer each have their own, independently determined privacy policies, notices and procedures for the personal data they hold and are each a data controller (and not joint data controllers). In complying with the Data Protection Laws, each Party shall, without limitation:
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- implement and maintain at all times all appropriate security measures in relation to the processing of personal data;
- maintain a record of all processing activities carried out under this Agreement; and
- not knowingly do anything or permit anything to be done which might lead to a breach by the other Party of the Data Protection Laws.
9.4. Publicity. Customer authorizes BetterMe to include Customer’s name and logo in BetterMe’s online customer lists and in print and electronic marketing materials.
9.5. Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. Without limiting this Section, a Customer’s End Users are not third-party beneficiaries to the Customer’s rights under this Agreement.
9.6. Force Majeure. Neither Party shall be liable to the other for its failure to perform any of its obligations under this Agreement, except for payment obligations, to the extent caused by a condition that is beyond that Party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the Internet or any utility service, failures in third-party hosting services, and denial of service attacks (each a “Force Majeure Event”). The Party experiencing a Force Majeure Event shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). The Party experiencing a Force Majeure Event shall promptly notify the other Party thereof and make reasonable efforts to mitigate the effects of the Force Majeure Event.
9.7. Severability; No Waiver. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
9.8. Assignment. Neither this Agreement nor any of the rights and licenses granted under this Agreement may be transferred or assigned by Customer without the BetterMe’s express written consent (not to be unreasonably withheld or delayed); provided, however, that either party may assign this Agreement and all Service ordered under the applicable invoices under this Agreement upon written notice without the other party’s consent to an Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the non-assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
9.9. Changes. BetterMe may change this Agreement from time to time to reflect: (a) changes to law; (b) new regulatory requirements, or (c) improvements made to our Service.
If such revisions affect the Customer’s use of the Service or your legal rights as the user of our Services, BetterMe will notify prior to the update’s effective date by sending an email to the email address indicated in the invoice. Such updates will be effective no less than 14 days from the date of notification. If the Customer does not agree to the updates we make, the Customer must notify BetterMe to receive a prorated refund based on the amounts the Customer has prepaid for the Service. Customer’s continued use of the Services after such posting shall be deemed to constitute acceptance by you of such modifications, additions, or deletions.
9.10. Price Modifications. Subject to pricing terms agreed in an invoice, BetterMe may modify the pricing of the Services and add new services or pricing plans for additional fees and charges or amend fees and charges for existing services at any time and in its sole discretion without prior notice to Customer.
9.11. Additional Agreements. The Parties may occasionally enter into additional agreements, amendments, or addenda to this Agreement, including for the provision or purchase of physical goods, professional services, or other offerings not governed by the present terms. Any such agreement shall reference this Master Service Agreement, be in writing, and form an integral part hereof upon signature by both Parties.
9.12. Entire Agreement. This Agreement, including all attachments, exhibits, addendums, and any invoice(s) hereunder, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this agreement, express or implied, except for the representations and warranties set forth in this Agreement.
10. Definitions.
10.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means either: (a) ownership or control of more than 50% of the voting interests of the subject entity; or (b) the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract, or otherwise.
10.2. “Customer” means the legal entity identified in the applicable invoice that receives the Service under purchased Subscription and is responsible for its associated obligations under this Agreement.
10.3. “Customer Data” means information submitted by a Customer for providing the Service, including all associated messages, End User HR data, conversations, and other similar content.
10.4. “Data controller” (or simply “controller”) and “data processor” (or simply “processor”) and “data subject” have the meanings given to those terms under the Data Protection Laws.
10.5. “Data Protection Laws” means EU Directive 95/46/EC or Regulation (EU) 2016/679 (GDPR) and any associated regulations or instruments and any other data protection laws, regulations, regulatory requirements and codes of practice applicable to the provision of the Services.
10.6. “Effective Date” means the date the Customer completed the payment for the Subscription.
10.7. “End User” means an individual who is authorized by Customer to use the Service under Subscription. End Users may include, without limitation, Customer’s or its Affiliates’ employees, consultants, contractors and agents.
10.8. “HR Admin Data” means general information about End Users’ use of the Service granted under the Subscription, available to the Customer in the HR Admin Panel.
10.9. “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
10.10. “Improvements” means new features, functionality, enhancements, upgrades, error corrections and bug fixes to the Service made generally available by BetterMe at no additional charge.
10.11. “Marks” means trademarks, service marks, logos, and other brands.
10.12. “Personal Data” has the meaning given to it under the Data Protection Laws.
10.13. “Privacy Policy” means the privacy policy available at https://betterme.world/privacy-policy, its successor website, or within the Services, as updated from time to time in BetterMe’s sole discretion.
10.14. “Service” means BetterMe’s fitness mobile applications, including any Improvements as described in the applicable invoice.
10.15. “Subscription” means the access to the Service purchased by the Customer on a per End User basis.
10.16. “Subscription Term” means the period identified in the applicable invoice during which Customer’s End Users are permitted to use or access the Service pursuant to the terms set forth in this Agreement.
10.17. “Terms” mean any terms of use governing use of the Services available at https://betterme.world/terms its successor website, or within the Services, as updated from time to time in BetterMe’s sole discretion.