Terms & Conditions

SCHEDULE “A”

GENERAL TERMS AND CONDITIONS

1. INTERPRETATION.

1.1         Definitions. In this Agreement,

(a)       Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, investigative, regulatory, or other, whether at Law, in equity, or otherwise.

(b)       Admin Panel” means one or more websites or mobile applications owned or controlled by Wellnify.ai through which Customers and Users may obtain access to the Product as more specifically set out in Schedule “B”.

(c)       Affiliate” means from time to time, as to any Person, any other Person that, at the relevant time, directly or indirectly controls, is controlled by, or is under common control with, such Person, whether through ownership of voting securities or otherwise. For this purpose, and without limiting the foregoing, any Person that holds, directly or indirectly, the beneficial or equitable ownership of 50 percent or more of the capital stock (or other ownership interests, if not a corporation) of such other Person shall be deemed to control such other Person.

(d)       Annual Licence Fee” has the meaning ascribed to it in Section 6.2.

(e)       Anonymized Information” means information that does not contain personally identifiable information and is non-identifiable such that the information is not Personal Information.

(f)        Applicable Laws means any law (including common law), statute, by-law, act, decree, ordinance, rule, directive (to the extent having the force of law), order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority having jurisdiction, as amended, supplemented or otherwise modified and in effect from time to time, and any replacement thereof, that is mandatory and compels a Person to do anything or to not do anything, including all such laws and regulations relating to export of technology and the collection, storage, disclosure, dissemination, transfer and use of data, including privacy laws.

(g)       Confidential Information” means any and all material and information concerning a Party and/or its Affiliates and subsidiaries which has or will come into the possession or knowledge of the other Party in connection with or as a result of entering into this Agreement, including the terms and conditions of this Agreement which includes information on pricing structure and agreements thereof, specific or otherwise to this agreement. and, in the case of Customer, any and all Customer Information; provided, however, that, for the purposes of this Agreement, “Confidential Information” shall not include information that: (i) is generally known or available to the public at the time of receipt from the disclosing Party, or thereafter becomes generally known or available to the public other than through a breach of this Agreement by the receiving Party; (ii) is known by the receiving Party at the time of receiving such information as evidenced by its records created prior to the date of the Agreement; (iii) is disclosed with the prior written consent of the disclosing Party; (iv) is hereafter furnished to the receiving Party by a third party without breach of this Agreement by the receiving Party and as a matter of right and without restriction on disclosure; (v) is developed independently by the receiving Party, as evidenced by its records, without any breach of this Agreement; (vi) is Personal Information, the collection, use, disclosure and protection of which is outlined in, and governed by, the Privacy Notice (as defined hereunder); or (vii) is, or could be, hereafter lawfully acquired or otherwise obtained by the receiving Party from a third party without breach of this Agreement. For the purposes of this Agreement, the Party receiving the Confidential Information is the “Receiving Party” and the party providing Confidential Information is the “Disclosing Party”.

(h)       Customer Content” means any and all content provided by Customers and/or a User to Wellnify.ai, or related to Customer and/or a User in any way, whether it is uploaded to the Product through the Admin Panel or otherwise, including videos (e.g., exercise, assessments, challenges and yoga training videos), photographs (e.g., athlete photos), guidelines (e.g., relating to health, physical activity, sport, nutrition, etc.), policies (e.g., relating to drug use), medical and nutrition records and other documents and materials.

(i)         Customer Indemnitee” has the meaning ascribed to it in Section 10.1.

(j)         Customer Information” means all forms and types of information provided by Customer or its Affiliates to Wellnify.ai, including Personal Information, Confidential Information and Customer Content, as well as financial, business, marketing, operations, scientific, technical, economic and engineering information, whether tangible or intangible. By way of example, Customer Information includes patterns, plans, compilations, program devices, formulas, designs, prototypes, samples, methods, techniques, processes, procedures, protocols, programs, codes, know-how, computer software, documentation, databases, files, templates, listings, tags, code, works of authorship (including texts, posts, messages, audio-visual material, multimedia elements, photos, video, music, sounds, images, designs, illustrations and presentations) product names, trademarks, service marks, logos, domain names, marketing materials or programs, plans, specifications, shop-practices, customer lists, supplier lists, engineering and manufacturing information, price lists, costing information, employee and consulting relationship information, data, including accounting and financial data, profit margin, marketing and sales data, strategic plans, trade secrets and all other proprietary information (including all originals, copies, digests and summaries in any form)

(k)       Customer Information Compromise Event” has the meaning ascribed to it in Section 7.3..

(l)         Customer Marks” means the trade names, trademarks, service marks, copyrights and other IP Rights of Customer, together with any other words and/or designs, logos, colours or marks whether registered or unregistered, used from time to time by Customer to designate or identify Customer, including rights under all Applicable Laws, and all goodwill associated with or symbolized by the marks.

(m)      Derivative Works” means any and all revisions, modifications, changes, translations, abridgements, compilations, condensations or expansions of the applicable underlying work or any form in which that work may be recast, transformed or adapted, together with all documentation and instructions relating to such revisions, modifications, changes, translations, abridgements, compilations, condensations or expansions, made during the Term.

(n)       Documentation” means user documentation for the Product available at Wellnify.ai’s website or sent to Customer in print, as may be amended by Wellnify.ai from time to time.

(o)       Force Majeure Event” has the meaning ascribed to it in Section 12.15.

(p)       Governmental Authority” means any governmental, regulatory or administrative authority, department, agency, commission, board, panel, tribunal, court or other law, rule or regulation-making or enforcing entity having compulsory jurisdiction on behalf of any nation, or province, territory or state or other subdivision thereof or any municipality, district or other subdivision thereof.

(q)       Implementation Fee” has the meaning ascribed to it in Section 6.1.

(r)        Initial Term” has the meaning ascribed to it in Section 5.1.

(s)      IP Rights” means current and future copyrights, patent rights, trademark rights, industrial design rights (whether registered or unregistered, including any applications with respect thereto), proprietary information rights, and utility modules (including all such rights in computer software and databases), grants and registrations, claims for infringement and misappropriation and all other similar proprietary rights now known or hereafter recognized in any medium anywhere in the world.

(t)        Licensed Software” means the Product and the Admin Panel.

(u)       Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, disbursements, and charges and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

(v)       Notice” has the meaning ascribed to it in Section 12.6.

(w)      Wellnify.ai Indemnitee” has the meaning ascribed to it in Section 10.3.

(x)       Wellnify.ai Marks” means the trade names, trademarks, service marks, copyrights and other IP Rights of Wellnify.ai, together with any other words and/or designs, logos, colours or marks whether registered or unregistered, used from time to time by Wellnify.ai to designate or identify Wellnify.ai, including rights under all Applicable Laws, and all goodwill associated with or symbolized by the marks.

(y)     Person” means any individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, joint venture, body corporate, a government or any department or agency thereof, and a natural person.

(z)       Personal Informationmeans information about an identified or identifiable natural person, including a User who is a natural person, either alone or in combination with other reasonably available information.

(aa)    Privacy Notice” means Wellnify.ai’s privacy notice, as may be amended by Wellnify.ai from time to time, which outlines and governs how Wellnify.ai collects, uses, discloses and protects Personal Information (https:/www.wellnify.ai/privacy-notice/)

(bb)    Product” means Wellnify.ai “community engagement mobile application” available through the Wellnify.ai (as described in more detail in Schedule “B” attached hereto) or such other access as may be developed by Wellnify.ai during the Term, and the Documentation, together with any Updates or amendments thereto.

(cc)    Product Infrastructure” means the hardware, software and other equipment that Wellnify.ai uses in connection with its hosting of the Product for Customer hereunder.

(dd)    Renewal Term” has the meaning ascribed to it in Section 5.1.

(ee)    Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, and legal advisors.

(ff)     Scheduled Maintenance Period” means a period of time, generally 1-2 hours at times that will cause the least amount of disruption to the service, whereby the Wellnify.ai development team carries out regular, planned maintenance work on the Product to ensure optimal performance, reliability and security.

(gg)    Term” has the meaning ascribed to it in Section 5.1.

(hh)    Update” means any updates with regards to security enhancements or functional performance of the platform for the Product that are made generally available by Wellnify.ai to Wellnify.ai’s customers.

(ii)        User” means the Customer and any Person who uses the Product via access provided by the Customer.

2. SOFTWARE LICENSE.

2.1         Grant of License. Wellnify.ai grants to Customer a worldwide, non-exclusive, non-sublicensable, non-assignable, non-transferable license, during the Term of this Agreement, to access and use the Product, and to authorize Users to access and use the Product, via the Admin Panel or such other access as may be developed by Wellnify.ai during the Term. The total number of Users will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Annual Licence Fee payable hereunder.

2.2         Retention of IP Rights. Customer acknowledges that: (a) Wellnify.ai is in the business of providing the Licensed Software and other software tools and services for a wide variety of customers and will continue these activities, including developing software or materials for itself or other customers, irrespective of the possible similarity to the Product provided to the Customer hereunder; and (b) Wellnify.ai retains all rights to its knowledge, experience and know-how (including any processes, ideas, concepts and techniques) acquired in the course of providing the Product to the Customer hereunder.

2.3         License Restrictions.

(a)       Customer may not disassemble, decompile, reverse engineer, or decrypt the Product or any element thereof. Except as expressly authorized herein, Customers may not copy, modify, display, sublicense (except to Users), re-sell, rent or distribute any component of the Product.

(b)       For greater certainty, this Agreement does not secure use and access to the Licensed Software to any affiliated Customer(s) or organization(s) of the Customer, including, without limitation, any Person that controls, is controlled by or is under common control with the Customer.

(c)       Use of the Product by Customer and the Users will be subject to Wellnify.ai’s Privacy Notice.

2.4         Affiliates and Subcontractors. Wellnify.ai may: (a) delegate any of its rights and obligations under this Agreement; and (b) subject to the Privacy Notice, disclose Customer Information to: (i) an Affiliate; and (ii) a subcontractor, provided such subcontractor has agreed in writing to be bound by data security and nondisclosure obligations comparable to those set out in this Agreement.

3. SERVICES

3.1         Product Infrastructure and Third-Party Hosting Services.

(a)       Wellnify.ai will be responsible for providing and maintaining the Product Infrastructure. The Product Infrastructure is subject to modification by Wellnify.ai, in its sole discretion, from time to time, for purposes such as, but not limited to, adding new functionality, maximizing operating efficiency and upgrading hardware so long as any and all such modifications comply with the terms of this Agreement. Wellnify.ai will give Customer reasonable prior notice of any such modifications.

(b)       Wellnify.ai shall be responsible for maintaining the functionality and availability of the servers on which Customer Information is hosted, stored and/or served, including all related infrastructure, networks, software, hardware, servers and all other functions of such hosting provider. Wellnify.ai’s use of any third party services therefore shall not relieve Wellnify.ai of any of its obligations under this Agreement.

3.2         Updates. Wellnify.ai will provide Updates to Customer as they are released generally to all Customers.

3.3         Maintenance Outage. Wellnify.ai shall provide Customer with a minimum 48 hours’ prior notice of any planned maintenance outages. Notice of any Scheduled Maintenance Period other than the regularly recurring Scheduled Maintenance Periods will be provided to Customers designated point of contact by Wellnify.ai’s customer support department.

3.4         Minimum Service Standards. Wellnify.ai shall be available for support services during the hours of 9 am – 5 pm Atlantic Time, seven days a week, 365 days per year, excluding only Christmas Day and New Year’s Day. Wellnify.ai shall maintain a monthly uptime percentage of not less than 99.5 percent, not including any Scheduled Maintenance Period, or any other scheduled maintenance that may reasonably be required from time to time, and will undergo daily system backups to ensure the application data is effectively stored and secure. If Wellnify.ai does not meet these minimum service standards, Customer may be eligible to receive these service credits:

Monthly Uptime Percentage

Credit equal to the value

 of days of service

< 99.5% – >= 99.0%

2

< 99.0% – >= 95.0%

4

< 95.0% – >= 90.0%

8

< 90.0%

15

All service credits will be applied by Wellnify.ai to Customer’s account if and as applicable.

4. SERVICE MANAGEMENT

4.1         Service. Wellnify.ai will ensure that the Licensed Software is fully operational and available to Customer and to Users during the Term. During the Term, Wellnify.ai will provide Customers with technical support relating to the Licensed Software and will fix all errors, failures or other issues with the same.

4.2         Installation, Training and Customization. Upon execution hereof, Wellnify.ai will configure and implement the Product as agreed upon by the Parties. In connection with same: (a) Customer will provide Wellnify.ai with reasonable access to Customer’s staff; and (b) Wellnify.ai will provide development and implementation experts who will provide training and on-boarding services in order to get the Licensed Software functioning as described on Schedule “B” hereto (as such Schedule may be amended by the Parties during the Term). Thereafter, Wellnify.ai shall furnish support as needed through telephone, email and online meetings for the duration of the Term.

5. TERM AND TERMINATION.

5.1         Term. The term of this Agreement begins on the the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the Initial Term as specified in the Order Form (the “Initial Term”). This Agreement will automatically renew for additional one year periods (each, a “Renewal Term”) unless Customer provides notice to Wellnify.ai of non-renewal within 60 days prior to the expiration of the then current Term. The Initial Term and any Renewal Term hereunder are collectively referred to as the “Term”.

5.2         Termination. Customer will have the right to terminate this Agreement on written notice to Wellnify.ai if: (a) Wellnify.ai is in material breach of this Agreement, including if the Licensed Software and/or services provided by Wellnify.ai do not conform to the specifications set forth on Schedule “B” and Wellnify.ai is not able to remedy the breach within 15 days of notice thereof; or (b) immediately upon the insolvency, bankruptcy, winding-up or liquidation of Wellnify.ai.

5.3         Effect of Termination. Upon the expiry or termination of this Agreement for any reason, all rights of Customer hereunder with respect to the Licensed Software will immediately cease and Wellnify.ai will delete any Customer Content from the Admin Panel upon request of Customer. Upon termination, all rights or access of Wellnify.ai hereunder with respect to Customer Marks and Customer Content will immediately cease and, subject to Section 5.2, Section 7.2(b)(ii) and the Privacy Notice, all rights or access of Wellnify.ai hereunder with respect to Customer Information, will immediately cease. Subject to Section 7.2(b)(ii), upon request of Customer, Wellnify.ai will provide Customer with a copy of all Customer Information in Wellnify.ai’s possession and, once Customer confirms same, Wellnify.ai will destroy all copies (whether in electronic or other form) of all Customer Information in its possession and provide Customer certification of such destruction.

6. REMUNERATION.

6.1         Implementation Fee. Customer shall pay to Wellnify.ai a one-time implementation fee for installing, customizing, configuring and supporting the implementation and initiation of the Product, as set out in the Order Form (the “Implementation Fee”). Customer will pay the Implementation Fee in accordance with the payment terms set forth in the Order Form.

6.2         Annual Licence Fees.

(a)       In consideration of the licence rights and services provided by Wellnify.ai hereunder, during the Term, Customer will pay to Wellnify.ai an annual licence fee as set forth in the Order Form (the “Annual Licence Fee”). Wellnify.ai will provide written notice of any increase to the Annual Licence Fee at least 90 days prior to the expiration of the then current Renewal Term. In the event Customer does not provide notice of non-renewal within 60 days prior expiration of the term, Customer will be deemed to have accepted the fee increase.

(b)       Customer will pay the Annual Licence Fee for the Initial Term in accordance with the payment terms set forth in the Order Form. Customer will pay the Annual Licence Fee for each Renewal Term in accordance with the payment terms set forth in the Order Form and in accordance with the invoice for such term, which Wellnify.ai will submit to Customer on or after the anniversary of the applicable Renewal Term.

6.3         Taxes. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all goods and services, harmonized sales, sales, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, or territorial governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Wellnify.ai’s income.

7. CONFIDENTIALITY AND CUSTOMER INFORMATION

7.1         Confidential Information.

(a)       The rights and obligations of Wellnify.ai and Users with respect to the collection, use and disclosure of Personal Information shall be governed by the Privacy Notice. The Privacy Notice shall prevail over any other provision of this Agreement to the extent that it relates to Personal Information, unless expressly stated otherwise in this Agreement.

(b)       Wellnify.ai and Customer each acknowledge that during the Term of this Agreement the Parties will exchange Confidential Information and that any Confidential Information will be used solely for the purposes specifically set out in this Agreement and for no other purpose. For clarity, for the purposes of this Agreement, Confidential Information shall not include Personal Information, the collection, use, disclosure and protection of which is outlined in, and governed by, the Privacy Notice. Accordingly, this Section 7.1 shall not apply to Personal Information.

(c)       The Receiving Party agrees to take all necessary and appropriate steps to keep confidential and protect the Disclosing Party’s Confidential Information including: (i) restricting access to all Confidential Information received from the other to those employees of the Receiving Party or its Affiliates, if applicable, who have a “need to know” and advising such employees of their obligations to handle the Confidential Information with the highest degree of care and prudence to prevent a violation of this Agreement; and (ii) not using, disclosing, or allowing access to such Confidential Information by any third party, except as authorized by the Disclosing Party in writing including information on pricing structure and agreements thereof specific or otherwise  to this agreement. Each Party further agrees not to copy, reproduce or reduce to writing any part thereof except as may be reasonably necessary and ensure that any copies, reproductions or reductions to writing so made shall be the property of the Disclosing Party.

(d)       The Receiving Party agrees it shall be liable for any breach of this Section 7.1 by their employees, employees of their Affiliates or subsidiaries and by any consultant, representative, agent, or other third party to whom it has communicated Confidential Information as if each of the foregoing were parties to this Agreement.

(e)       If the Receiving Party becomes legally required to disclose Confidential Information, or any part thereof, the Receiving Party will give the Disclosing Party prompt notice of such requirement to the extent that the Receiving Party is legally able to do so. If the Disclosing Party waives compliance with any of the terms of this Agreement or is unable to obtain a protective order or other appropriate remedy with respect to such disclosure of Confidential Information, then the Receiving Party will disclose only that portion of the Confidential Information necessary to ensure compliance with such legal requirement. Any Confidential Information that is disclosed pursuant to a legal obligation shall maintain its confidential character if the disclosure does not result in the information becoming generally known or available to third parties without restrictions on further disclosure. The Receiving Party has the burden of proving the foregoing exceptions and must notify the Disclosing Party within forty-eight hours from the time of disclosure upon such exceptions.

(f)        The Receiving Party shall immediately notify the Disclosing Party upon discovery of any loss or unauthorized disclosure of the Confidential Information. The Receiving Party covenants and agrees to indemnify and hold harmless the Disclosing Party from and against any loss or damage arising out of the breach by the Receiving Party of any of the terms and conditions of this Agreement.

(g)       The Receiving Party agrees that all Confidential Information is and will remain the property of the Disclosing Party and all such Confidential Information in tangible form and copies thereof will be returned promptly to the Disclosing Party, within 30 days of the Disclosing Party’s request, except that the Receiving Party may retain one copy of the Disclosing Party’s Confidential Information for regulatory and risk management purposes provided that such copy is securely maintained in a secure location at the Receiving Party’s principal place of business or by the Receiving Party’s legal counsel. No use of such Confidential Information is permitted except as expressly provided in this Agreement, and the Receiving Party agrees not to rely upon, in any manner, Confidential Information except as expressly authorized by this Agreement. No grant of any of the Disclosing Party’s IP Rights, including any license implied or otherwise, is given or intended to be given.

7.2         Customer Information.

(a)       Wellnify.ai represents and warrants that (i) all Customer Information is being collected and received by Wellnify.ai only in its capacity as a service provider for Customer pursuant to this Agreement; (ii) it will hold all Customer Information secure and will comply with all Applicable Laws relating to the protection, privacy, collection, use and disclosure thereof; (iii) its employees will be trained with respect to the foregoing nondisclosure obligations; (iv) it has and will continue to implement technical, physical and procedural controls to protect all Customer Information against destruction, loss, alteration and unauthorized access, use and disclosure, whether by accident or otherwise, particularly where such Customer Information is transmitted over electronic networks, including encryption of Customer Information at all times whether in transit (e.g., over the Internet, between Wellnify.ai servers) or at rest (e.g., server hard disk, backup media).

(b)       Notwithstanding the foregoing, and subject to the Privacy Notice, Customer hereby expressly grants permission to Wellnify.ai to:

(i)   During the Term, access, use and combine (with other data, including data from third party sources) Customer Information for the purpose of: (A) carrying out its obligations pursuant to and in accordance with this Agreement; and (B) building, developing and improving the Product (and Derivative Works thereof) and the services offered by Wellnify.ai; and
(ii)  During and after the Term, freely access, use, combine (with other data, including data from third party sources) and reproduce Anonymized Information for the purpose of building, developing and improving the Product (and Derivative Works thereof) and other services or projects offered by Wellnify.ai. For certainty, Customer is not entitled to receive any compensation or re-imbursement of any kind from Wellnify.ai or any of the other third-party data sources in respect of the activities described in this Section 7.2(b)(ii).

(c)       Subject to Section 8.1, Section 7.2(b)(ii), and the Privacy Notice, Wellnify.ai will not disclose any Customer Information to any third party, nor will it use or disclose any Customer Information for any marketing, preference tracking or other purposes.

7.3         Customer Information Compromise Events. In the event that any Customer Information is or is threatened to be lost, misappropriated, corrupted or modified in any way not intended or authorized hereunder (a “Customer Information Compromise Event”), Wellnify.ai, at its own expense, shall notify Customer immediately; cooperate with Customer in investigating the occurrence and complying with all Applicable Laws; perform all actions required to comply with all Applicable Laws; and establish and describe all measures Wellnify.ai will undertake to prevent a future occurrence. The foregoing shall be in addition to Wellnify.ai indemnification obligations hereunder and all other rights and remedies of the Customer available under Applicable Laws. In addition, upon a Customer Information Compromise Event, Customer will have the right to terminate this Agreement within 60 days of being notified of such Customer Information Compromise Event and if terminated during that time, will be entitled to a return of the most recent Annual Licence Fee paid by Customer. Wellnify.ai shall execute and deliver to Customer such further instruments and documents as may be reasonably requested by Customer.

8. INTELLECTUAL PROPERTY.

8.1         Ownership in the Product. As between the Parties, all rights, including IP Rights, in and to the Product, including any configurations, customizations, improvements, upgrades, additional features, modifications, enhancements or Derivative Works thereto that are developed and implemented in the course of providing the Product to the Customer hereunder, will remain the absolute property of Wellnify.ai. Nothing herein will derogate from or cause to be transferred to Customer any property interest in the Product (or Derivative Works thereof).

8.2         Customer Content. Subject to Wellnify.ai rights set forth in Section 7.2(b): (a) Customer will be able to upload, in its sole discretion, Customer Content to the Product through the Admin Panel; (b) Customer will have the ability to permanently remove Customer Content from the Admin Panel; (c) as between Wellnify.ai and Customer, all Customer Content is and will be the sole and exclusive property of Customer; and (d) Wellnify.ai makes no claim with respect to any Customer Content and nothing herein will derogate from or cause to be transferred to Wellnify.ai any property interest in any Customer Content. Wellnify.ai will never access, copy, modify, display, sublicense, rent or distribute any Customer Content.

8.3         Use of Customer Marks. Customer Marks are and will be the sole and exclusive property of the Customer and subject to the provisions of this Agreement, Customer grants to Wellnify.ai a limited, royalty free, non-exclusive, non-assignable, non-transferable right and licence, without the right to sub-licence, to use Customer Marks for the branding of the Product for Customer and with prior approval by the Customer, for marketing purposes on the Wellnify.ai corporate website and marketing collaterals. Wellnify.ai will obtain Customer’s prior approval in respect of each such use of Customer Marks and, for each approved use, will include the correct designation/notification that Customer is the owner/licensor thereof. Furthermore, Customer will have the right to pre-approve all creative elements of the customized Licensed Software that include any Customer Marks. The Licence granted herein is strictly limited to its specific terms and for the specific purposes provided in this Section 8.3 and no licence is granted for any purposes other than as provided in this Section 8.3. In the event of the expiry or termination of this Agreement, Wellnify.ai shall immediately cease and desist from using Customer Marks.

8.4         Use of Wellnify.ai Marks. Subject to the provisions of this Agreement, Wellnify.ai grants to Customer a limited, royalty free, non-exclusive, non-assignable, non-sublicensable, non-transferable right and licence to use the Wellnify.ai Marks for marketing purposes on Customer website and marketing collaterals. The Licence granted herein is strictly limited to its specific terms and for the specific purposes provided in this Section 8.4 and no licence is granted for any purposes other than as provided in this Section 8.4. In the event of the expiry or termination of this Agreement, each Party shall immediately cease and desist from using the other Party’s Marks.

9. REPRESENTATIONS AND WARRANTIES.

9.1         Mutual Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that:

(a)       it has the power and capacity to enter into and perform its obligations and grant the rights, licences, and authorizations it grants and is required to grant under this Agreement;

(b)       the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary action of such Party; and

(c)       when executed and delivered by the Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

9.2         Representations and Warranties and Covenants of Wellnify.ai. Wellnify.ai represents and warrants that:

(a)       Wellnify.ai has obtained any and all consents, approvals and other authorizations necessary for the performance of its obligations under this Agreement and the use of the Licensed Software by Customer or any User will not violate any third-party IP Rights or other proprietary rights or otherwise conflict with the rights of any third party;

(b)       the Product will operate in substantial conformance with the Documentation and will operate free of any virus or other code which has the ability to damage, interfere or otherwise adversely affect Customers other software, hardware, computer programs, platforms, data files and/or the like. Wellnify.ai will use commercially reasonable efforts to remedy any such failure of the Product to so operate as soon as is reasonably practicable; and

9.3         Representations and Warranties of Customer. Customer represents and warrants that:

(a)       it has obtained any and all consents, approvals and other authorizations necessary for the performance of its obligations under this Agreement and for Wellnify.ai to, if applicable, use, operate, modify or adapt any of the Customer Information for the sole purpose of providing the Product to the Customer hereunder; and

(b)       the use by Wellnify.ai of Customer Information to provide the Product to the Customer hereunder, to the extent that the manner of such use is specified by Customer, will not infringe the IP Rights of any third party.

10. INDEMNIFICATION AND LIMITATION OF LIABILITY.

10.1      Indemnification by Wellnify.ai.

(a)       Subject to the terms and conditions set forth in Section 10.2, Wellnify.ai will indemnify, defend, and hold harmless Customer and Customer’s officers, directors, and employees, agents and permitted assigns (each, including the Customer, a “Customer Indemnitee”) against any and all Losses incurred by the Customer Indemnitee arising out of any Action by a third party (other than an Affiliate of a Customer Indemnitee) alleging that the Licensed Software, or any use of the Licensed Software, infringes any IP Right.

(b)       In the event Customer is enjoined or otherwise prohibited, or in Wellnify.ai’s opinion is reasonably likely to be enjoined or otherwise prohibited, from using the Licensed Software as a result of any claim for which Wellnify.ai is required to indemnify Customer under Section 10.1(a), Wellnify.ai, at its own expense and option, will, in addition to fulfilling its obligations described in Section 10.1(a): (i) procure for Customer the right to continue using the Licensed Software; (ii) modify the Licensed Software so that it becomes non-infringing without materially altering its capacity, functionality or performance; or (iii) replace the Licensed Software, as applicable, with a product or website that is reasonably equivalent in capacity, functionality and performance but is non-infringing.

If none of the foregoing remedies is available to Wellnify.ai, then Customer will be entitled to terminate the Agreement and, in addition to any and all other remedies available to Customer, Wellnify.ai will promptly refund to Customer all fees and other amounts paid by Customer to Wellnify.ai for the then current Customer. This shall be the sole and exclusive remedy for Customer.

10.2      Exceptions. Notwithstanding anything to the contrary in this Agreement, Wellnify.ai is not obligated to indemnify, hold harmless, or defend the Customer Indemnified Parties against any claim (whether direct or indirect) if such claim or corresponding Losses arise out of or result from, in whole or in part, the Customer Indemnified Parties’ (a) negligence or wilful misconduct; (b) failure to comply with any obligations set forth in this Agreement; or (c) use of the Licensed Software in any manner not otherwise authorized under this Agreement.

10.3      Indemnification by Customer: Customer will indemnify, defend and hold harmless Wellnify.ai, its Affiliates and each of its and their respective officers, directors, employees, agents, representatives, contractors, and assigns (each, including Wellnify.ai, a “Wellnify.ai Indemnitee”) from and against any and all Losses incurred by Wellnify.ai Indemnitee in connection with any Action by a third party (other than an Affiliate of a Wellnify.ai Indemnitee) to the extent that such Losses arise out of or relate to any allegation:

(a)       that any IP Right or other right of any Person, or any Applicable Laws, is or will be infringed, misappropriated, or otherwise violated by any: (i) use or combination of the Licensed Software by or on behalf of Customer or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by Wellnify.ai nor authorized by Wellnify.ai in this Agreement and the Documentation; and (ii) information, materials, or technology, including Customer Information, or other matter whatsoever directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated, or used with, as part of, or in connection with the Licensed Software or Documentation;

(b)       of or relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant, or obligation under this Agreement;

(c)       of or relating to negligence, abuse, misapplication, misuse, or more culpable act or omission (including recklessness or wilful misconduct) by or on behalf of Customer or any of its Representatives with respect to the Licensed Software or Documentation or otherwise in connection with this Agreement; or

(d)       of or relating to use of the Licensed Software or Documentation by or on behalf of Customer or any of its Representatives that is outside the purpose, scope, or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Wellnify.ai’s instructions.

10.4      Limitation of Liability. Despite any contrary provision in this Agreement, the Parties agree as follows:

(a)       Neither Party will be liable to the other for any indirect or consequential loss or damage, loss of actual or anticipated profit, interest or revenue, or anticipated savings or business or damage to goodwill or brand equity, even if the other Party is advised in advance of the possibility of any such losses or damages.

(b)       Except for liability arising under a Party’s obligations under Sections 7.3, 10.1 or 10.3, each Party’s total liability in contract, tort (including negligence or breach of statutory duty), or otherwise in relation to this Agreement shall be limited to the aggregate amounts paid by Customer to Wellnify.ai for the service that resulted in the damage during the 12 months prior to the damage being incurred.

(c)       Nothing in this Agreement excludes or limits the liability of either Party for death or personal injury caused by that Party’s gross negligence; fraud or fraudulent misrepresentation.

10.5      DISCLAIMER. WELLNIFY.AI DOES NOT PRACTICE MEDICINE AND THAT THE PRODUCT AND THE RESULTS OBTAINED FROM USE OF THE PRODUCT DO NOT CONSTITUTE, AND SHOULD NOT BE A SUBSTITUTE FOR, MEDICAL ADVICE.

11. INSURANCE.

11.1      Wellnify.ai shall maintain cyber liability insurance coverage in an amount not less than $1,000,000 for the Term.

12. GENERAL.

12.1      Entire Agreement. This Agreement, together with the Privacy Notice and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, conditions, representations, and warranties, both written and oral, with respect to such subject matter.

12.2      Priority. If there is any apparent conflict or inconsistency between the Order Form, the Schedules, the Privacy Notice, or any other terms of use agreement, the following order of precedence governs: (i) first, the Order Form, (ii) second, these General Terms and Conditions; (iii) third, the Privacy Notice, (iv) fourth, the Schedules to this Agreement as of the Effective Date, and (v) fifth, any other documents incorporated herein by reference.

12.3      Currency. Unless otherwise specified, all dollar amounts referred to herein are expressed in United States dollars.

12.4      Binding Effect. This Agreement and all of the terms and provisions hereof will ensure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns.

12.5      Surviving Terms. The provisions set forth in the following Sections will survive any expiration or termination of this Agreement: Section 1 (Interpretation), Section 5.3 (Effect of Termination), Section 7.1 (Confidential Information), 7.2 (Customer Information), Section 8 (Intellectual Property), Section 9 (Representations and Warranties), and Section 10 (Indemnification and Limitation of Liability), and Section 12 (General).

12.6      Notices.

(a)       All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and addressed to the Parties at the addresses set forth as follows:

If to Customer:            As set forth in the Order Form
If to Wellnify.ai: Wellnify.ai
2108 – 1969 Upper Water Street
Purdy’s Wharf Tower Two
Halifax, Nova Scotia B3J 3R7
Attention: Jeff Johnson
Email: jeff.johnson@Wellnify.ai
With a copy to:           Brendon Ferguson
Email: brendon.ferguson@Wellnify.ai

or at such other address as the Party to whom such writing is to be given will have last notified to the Party giving the same in the manner provided in this subsection.

(b)       Notices sent in accordance with this Section 12.6 will be deemed effectively given: (i) when received, if delivered by hand, with signed confirmation of receipt; (ii) when received, if sent by a recognized overnight courier, signature required; (iii) when sent, if by email, if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours; and (iv) on the third day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.

12.7      Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party.

12.8      No Partnership or Agency. Nothing in this Agreement will be deemed to constitute a partnership between the Parties or constitute either Party as the agent of the other Party for any purpose whatsoever. In addition, the relationship between Wellnify.ai and Customer is intended to be and will be that of independent contractors. Wellnify.ai will under no circumstances be considered a partner, joint venturer or employee of Customer.

12.9      Non-Waiver. No waiver of any breach of any provision of this Agreement will be effective or binding unless made in writing and signed by the Party or Parties purporting to give the same and, unless otherwise provided in the written waiver, will be limited to the specific breach waived.  No delay of or omission in the exercise of any right or remedy occurring to any Party hereunder will impair any such right or remedy, nor will it be construed as a waiver of any future exercise of any right or remedy.

12.10   Amendments and Modifications. No modification, change, or alteration of this Agreement is effective unless in writing and signed by the Parties.

12.11   Counterparts. This Agreement may be signed in any number of counterparts, each of which is an original, and all of which taken together constitute one single document. Counterparts may be transmitted by fax or in electronically scanned form. Parties transmitting by fax or electronically will also deliver the original counterpart to the other Party, but failure to do so does not invalidate this Agreement.

12.12   Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

12.13   Governing Law; Venue, etc. This Agreement shall be governed by and construed in accordance with the substantive laws of the Province of Nova Scotia and the laws of Canada applicable therein, without regard for any choice or conflict of laws rule or principle that would result in the application of the domestic substantive law of any other jurisdiction. Each Party irrevocably waives any claim of inconvenient forum or other objection it may now or hereafter have with respect to the venue of any proceeding brought in such court.

12.14   Equitable Relief. Each Party shall be entitled to a decree compelling specific performance with respect to, and shall be entitled, without the necessity of filing any bond, to the restraint by injunction or temporary restraining order of any actual or threatened breach of any material obligation of the other Party under this Agreement to the extent permitted by a court of competent jurisdiction. The foregoing remedy is, in addition to any and all remedies available at law and shall not require the moving party to first exhaust other remedies.

12.15   Force Majeure. In no event will Wellnify.ai be liable for or responsible to Customer, 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 that such failure or delay is caused by any circumstances beyond Wellnify.ai’s reasonable control (a “Force Majeure Event“), including (i) service interruptions by third party providers, (ii) denial of service attacks; (iii) acts of God; (iv) government order, passage of law, or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown; (v) national or regional emergency; and (vi) national or regional shortage of adequate power or telecommunications or transportation facilities. The Program.ai may terminate this Agreement if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of 30 days or more.

12.16   Further Assurances. At any time and from time to time, the Parties will, without further consideration, take such further action and execute and deliver such further instruments and documents as may be reasonably requested by the other Party in order to carry out the provisions and purposes of this Agreement.

 

 

 

SCHEDULE “B”

THE PRODUCT AND THE ADMIN PANEL

Wellnify.ai Product includes the following functions, features and environments; however, Wellnify.ai may change hosting networks, product solutions, and the Admin Panel if such changes provide for hosting and product environments and features no less secure or functional than those outlined herein.

Functional Features

Wellnify.ai Product includes the following features and functions:

1)     Web Based Administration / Content Management System

2)     Mobile Application

1) Web Based Administration, User and Content Management Platform

      User Management

      Invite / upload / delete Users

      Generate QR code and unique IDs

      Manage User groups

      Content Management

      Add and share images, videos, etc.

      Proprietary, partner, sponsor branding and logos

      Edit existing content or create custom Exercises, Workouts, Assessments and Challenges

      Create Customized Community Posts

      Track engagement with Community Posts

      Schedule content to arrive in the Mobile Application when desired to coincide your engagement timelines (Community Posts, Workouts, Challenges and Assessments)

2) Mobile Application

      Home Module: Today and weekly scheduled activities

      Activities Module:

      Workouts: Workout library and customized workouts

      Assessments: Assessment library and customized assessments

      Challenges: Challenge library and customized challenges

      AR (Augmented Reality) driven exercises and all updates

      Community Feed Module:

      Deliver content to User in support of sport; that is, registration links, Success Stories, Highlights, Skills and Drills, training tips, grant information, etc.

      Leaderboards and Friend Module

      Progress and Stats Modulet

NBA Superstar Jayson Tatum is passionate about positively inspiring and impacting children, teens and their families through education, athletics and support, and to encourage them to strive to fulfill their dreams and aspirations.